Court grapples with whether criticism counts as ‘some harm’ in discrimination case

The U.S. Supreme Court’s April 2024 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 new standard has required courts to consider whether much more generalized and subjective sorts of alleged harm are sufficient to support an employment discrimination claim. A federal district court in New Mexico recently analyzed whether allegations of “being criticized, demeaned and humiliated” would support race and age discrimination claims.

Background

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. Before Muldrow, cases discussed adverse employment actions in terms 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 didn’t result in a loss of pay or benefits.