On December 6, 2023, the United States Supreme Court heard oral argument in the case of Muldrow v. City of St. Louis. It isn’t actually an ADA case at all but rather a title VII case. Depending on how the decision ultimately comes down, it could have implications for a question that we have been discussing quite a bit, which is whether a failure to accommodate claim requires an additional adverse action beyond the failure to accommodate. In Muldrow, a person was transferred to another job and claimed the transfer itself was sufficient to state a claim under title VII. The Justices in their questioning expressed concern about the following: 1) is it the discrimination itself that is the injury or is some added injury required; 2) if it is the discrimination itself that is the injury, then why do hostile environment cases get a completely different kind of analysis; 3) is the only necessary link whether the injury is related to a term, condition, or privilege of employment; 3) with respect to any injury, assuming it is required, is the question of whether an injury occurred an objective standard or a subjective standard; 4) if an injury is required, how do you differentiate between an injury that is not actionable, i.e. de minimis, and one that is; 5) is the question of whether an injury occurred a separate question from whether damages exist. If so, doesn’t that move everything to the summary judgment stage and is that a problem; 6) what is a transfer; and 7) were certain facts waived because they were not properly preserved on appeal (brought up in response to a question from a Justice, but the Justices themselves did not seem to be particularly concerned about the waiver issue). There has been lots of reporting on the oral argument. After reading the oral argument, the only thing I can say for certain is that the decision will very likely go beyond just the narrow question of whether a transfer is sufficient for purposes of stating a claim under title VII. It remains to be seen just how broad the ruling will be and how that will affect the question of whether a failure to accommodate requires an adverse action.

William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.