Is being criticized by your supervisor ‘some harm’ and, therefore, discriminatory?

Furious boss firing incompetent employee, dissatisfied with bad work result

The recent U.S. Supreme Court decision in Muldrow v. City of St. Louis appears to have expanded the universe of “adverse employment actions” that could support an employee’s discrimination claim. The Supreme Court stated in Muldrow that to prove employment discrimination, an employee “must show some harm respecting an identifiable term or condition of employment” but need not show “that the harm incurred was ‘significant.’” This phrase has led to discussion about what sort of harm an employee must show. Prior to Muldrow, cases discussed adverse employment actions in terms of disciplinary actions such as discharge, denial of promotions, or not getting a pay raise with a performance evaluation. The “harm” at issue was clearly identified, and usually accompanied by a “loss” of some sort to the employee, such as the loss of a job or pay. In Muldrow, the specific harm the employee alleged was a transfer that did not result in a loss of pay or benefits.

Under the new Muldrow standard, “some harm” as to a term or condition of employment must be shown, but the harm does not have to be significant. The standard arguably implies that the harm might not involve an adverse employment action at all by the employer. The harm alleged still must be identifiable and related to the employee’s terms and conditions of employment. In Muldrow, the Supreme Court noted that the employee’s transfer changed the conditions of her work – specifically, a rotating shift rather than set work hours, fewer opportunities to work in important investigations as a police officer, reduced responsibilities, and the loss of some privileges, like driving an unmarked police vehicle.

Court’s conclusions in Smith v. McDonough, post-Muldrow

This new standard has led to courts being required to consider much more generalized and subjective sorts of alleged harm are sufficient to support a claim of employment discrimination. In Smith v. McDonough, the federal district court in New Mexico analyzed whether allegations of “being criticized, demeaned and humiliated” would support claims of race and age discrimination. One of the employee’s specific allegations was that his supervisor was biased against him based on his age because the supervisor said the employee should “retire so they could be happy.” The district judge found that this remark constituted a “mere offensive utterance” rather than intimidation or ridicule so severe as to alter the conditions of employment for the employee. Thus, the court found that this comment was not evidence of some harm respecting an identifiable term or condition of employment to support the employee’s discrimination claim.

The district court similarly dismissed the employee’s other allegations of criticism or humiliation from his supervisor as “so mild or isolated (that) a reasonable juror could not conclude that it altered the conditions of (the employee’s) employment.” These other alleged acts of humiliation included the supervisor reassigning to this employee a project that another worker had been working on, being excluded from two meetings and an email chain, and being denied training.

Regarding the job duty assignments, the district court noted that job assignments are “neither automatically actionable nor categorically non-actionable” in Title VII cases. Rather, courts take a case-by-case approach to determine whether there is objective evidence of “material disadvantage or merely the bald personal preferences of the plaintiff.” Here, this job reassignment was not objectively more onerous, less prestigious, or less desirable than any other project that the employee had been assigned to perform.

On the claims of being excluded from meetings and an email chain, the district court found that neither allegation supported a finding that altered the employee’s terms or conditions of employment. The court stated the not being included in two meetings was “conduct so mild and sparse” that no reasonable juror would conclude that it altered an identifiable term or condition of employment. The district court noted, too, that the supervisor who excluded the employee from the meetings had supervised the employee for a lengthy period of time – the upshot being that not being included in two meetings over that period could not be said to alter the employee’s conditions of employment. On being left off the one email chain, the district court added that the employee did not show that any similarly situated employee was included in the email chain while he was excluded. Thus, there was no evidence showing any discriminatory animus toward the employee in his exclusion from the email chain.

On the denial of training, the district court found that there was no evidence to show that the employee suffered any consequences due to missing the training he had requested. Thus, the court stated there was no harm to him as to any identifiable term or condition of employment.

Employer takeaways

The Smith case illustrates one way in which the lower courts are analyzing and deciding claims of employment discrimination under the Muldrow standard of some harm. Employers in addressing these situations must bring the discussion back to what is the identifiable term or condition of employment that is affected by the employment decision of a supervisor or manager. The question is not whether an employee feels there is some harm, but whether there is a change in a term or condition of employment that disadvantages an employee and harms the employee in some way. Accompanying this question is the ever-present requirement in any employment discrimination claim for the employee to show that he or she was treated differently than a similarly situated co-worker who is not in the employee’s protected classification. While Muldrow expands the sorts of employment actions that may be the basis of a discrimination claim, the case does not replace the requirement that an employee prove discrimination based on a legally protected characteristic occurred.


Muldrow v. City of St. Louis, 601 U.S. ___ (2024)

Smith v. McDonough, 2024 WL 2804428 (D. N. Mexico)