Muldrow, Two Years On: The “Some Harm” Standard Takes Shape

By Brendan F. Ryan on August 27, 2026

In December 2023, this blog examined the oral argument in Muldrow v. City of St. Louis and observed that the Supreme Court appeared poised to reject the heightened-harm requirement that many circuits, including the First, had imposed on Title VII plaintiffs challenging lateral transfers and similar employment decisions. We further noted that such a ruling would raise the profile of discrimination claims of all kinds, including so-called “reverse” discrimination claims directed at employer diversity initiatives. Both developments have since come to pass, and the Supreme Court and the lower courts, including the First Circuit, have substantially clarified the landscape. The picture that has emerged warrants renewed attention from employers.

The Supreme Court decided Muldrow on April 17, 2024. The Court held that a Title VII plaintiff challenging a job transfer need only show “some harm” respecting an identifiable term or condition of employment, and not harm that is significant, serious, substantial, or material. The Court reasoned that no heightened-harm requirement appears in the text of § 703(a)(1), and expressly acknowledged that the holding lowered the bar plaintiffs must meet. The Court preserved one significant carve-out: Title VII retaliation claims remain governed by the “materially adverse” standard of Burlington Northern & Santa Fe Railway Co. v. White, because the anti-retaliation provision serves a different statutory purpose.

Two years of lower court decisions have given the “some harm” standard shape, and the First Circuit has now begun to define its contours. The standard is not confined to transfers or to Title VII; courts, including the First Circuit, have applied it to other discrete employment actions and to disparate treatment claims under other federal anti-discrimination statutes, including the ADA and the ADEA. But the standard has a floor, and two recent First Circuit decisions illustrate where it lies. In O’Horo v. Boston Medical Center Corp., 131 F.4th 1 (1st Cir. 2025), an administrative error that erroneously informed an employee she would face more frequent performance reviews than male colleagues, when no such reviews in fact occurred, did not satisfy Muldrow, because it produced no actual disadvantageous change in the terms or conditions of her employment. And in Walsh v. HNTB Corp., 169 F.4th 330 (1st Cir. 2026), the court rejected the argument that placement on a performance improvement plan is categorically an adverse employment action. A per se rule, the court explained, is inconsistent with Muldrow; the inquiry is fact-intensive and specific to the particular PIP. A plan that documents performance deficiencies and identifies areas for improvement, without assigning new duties, altering title or compensation, or limiting the employee’s ability to pursue advancement, does not leave the employee worse off in any respect the statute recognizes. Walsh also confirmed that constructive discharge remains a demanding, independent standard, requiring working conditions so objectively intolerable that a reasonable employee would feel compelled to resign.

Muldrow’s boundaries have firmed up elsewhere. Retaliation claims remain governed by the materially-adverse standard the Supreme Court itself preserved, and courts have continued to treat constructive discharge as a distinct and considerably more demanding doctrine. And although some early decisions suggested that Muldrow’s reasoning might unsettle hostile work environment doctrine, the developing appellate authority has increasingly resolved that question in favor of the traditional standard: the Tenth Circuit has squarely held that the traditional severe-or-pervasive requirement survives Muldrow, and the Sixth Circuit, whose 2024 decision in McNeal v. City of Blue Ash had been read by some as extending Muldrow to harassment claims, has since clarified that the objective severe-or-pervasive standard remains a core requirement of a hostile work environment claim.

The second half of this blog’s prediction came to pass on June 5, 2025, in Ames v. Ohio Department of Youth Services.  There, the Supreme Court weighed in again and eliminated the “background circumstances” rule.  Now, majority-group plaintiffs in the five circuits that had adopted the rule may no longer be required to produce additional evidence suggesting that their employer is the unusual employer who discriminates against the majority. The First Circuit had not adopted the background circumstances rule, but the decision’s practical significance for local employers should not be discounted. Ames, in combination with Muldrow’s lowered harm threshold, has increased the salience and legal viability of majority-group discrimination claims at the same time that federal enforcement agencies have made alleged discrimination arising from diversity, equity, and inclusion programs a conspicuous priority. Employment decisions and programs that classify or benefit employees by reference to protected characteristics, in any direction, are now evaluated under a framework in which Title VII’s protections and prima facie evidentiary standard do not vary according to the complainant’s demographic group.

For employers, the combined lesson of Muldrow, Ames, O’Horo, and Walsh is one of scope. Before 2024, the practical litigation exposure associated with an employment decision was concentrated in terminations, demotions, and denials of promotion, in other words, decisions with obvious economic consequences. The universe of potentially actionable decisions is now considerably larger.  Transfers, changes in reporting lines, schedule modifications, alterations to job duties, and exclusion from meetings or training may each support a claim if the employee can identify some disadvantageous change in a term or condition of employment and connect it to a protected characteristic. At the same time, Walsh confirms that the mere existence of an unwelcome employment action is not enough. A PIP, standing alone, is not an adverse action unless it actually changes the terms or conditions of employment.  Accordingly, the documentation discipline that prudent employers have long applied to terminations, including contemporaneous articulation of legitimate business reasons, consistent application of policy, and review of comparator treatment, should now extend to this broader category of decisions, and performance management tools should be developed with Walsh in mind. Employers should recognize that accompanying changes to an employee’s duties, compensation, or advancement opportunities may alter the adverse-action analysis. Employers should likewise ensure that the same process, and the same rigor, applies to every employee’s complaint of discrimination, regardless of the complainant’s group membership.

Critically, however, Muldrow merely lowered the threshold for what constitutes an adverse action. It did not alter the plaintiff’s ultimate burden to prove discriminatory intent, and employers retain every conventional defense on the merits. The change is best understood not as a transformation of substantive liability but as an expansion of the category of decisions that can put an employer to its proof. As the First Circuit’s recent decisions demonstrate, the bar is lower, but it still exists. The most effective response is thus preparation.

For assistance with employment decisions presenting legal risk, discrimination claims, or review of workplace policies and programs, contact Brendan Ryan bryan@apslaw.com, Michael Chittick at mchittick@apslaw.com or Robert Brooks at rbrooks@apslaw.com.