Today’s blog entry talks about a case that is not an ADA case at all. However, I do expect the case to have a huge impact on a particular area of ADA jurisprudence. As we know, such as discussed here, there has been considerable debate in the courts over whether failure to accommodate cases require an additional adverse action on top of the failure to accommodate. Some cases say yes to that. Others say no to that. Still others, say that the failure to accommodate is an adverse action in and of itself. On April 17, 2024, the United States Supreme Court in a unanimous opinion decided the case of Muldrow v. City of St. Louis, here. The case is a Title VII case but has huge implications for the question of whether failure to accommodate cases per the ADA will require going forward an additional adverse action beyond the failure to accommodate. Any plain reading of the opinions in this case and then comparing the statutory text of Title VII with the ADA, strongly suggests that either a failure to accommodate case does not require an additional adverse action or that the failure to accommodate is an adverse action. As usual, the blog entry is divided into categories and they are: facts; majority reasoning that an employee need not show injury that satisfies a significance test when it comes to Title VII claims, though some-harm must be shown; Justice Thomas concurring opinion; Justice Alito concurring opinion; Justice Kavanaugh concurring opinion; and applicability of decision to whether an adverse action on top of a failure to accommodate will be required going forward/thoughts-takeaways. Of course, the reader is free to read any or all of the categories.





From 2008 through 2017, Sergeant Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. During her tenure there, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit. By virtue of her Division position, Muldrow was also deputized as a Task Force Officer with the Federal Bureau of Investigation—a status granting her, among other things, FBI credentials, an unmarked take home vehicle, and the authority to pursue investigations outside St. Louis. In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a “workhorse”—still more, that “if there was one sergeant he could count on in the Division,” it was Muldrow.


But the new Intelligence Division commander, Captain Michael Deeba, instead asked the Department to transfer Muldrow out of the unit. Deeba wanted to replace Muldrow—whom he sometimes called “Mrs.” rather than the customary “Sergeant”—with a male police officer. That officer, Deeba later testified, seemed a better fit for the Division’s “very dangerous” work. The Department approved the transfer against Muldrow’s wishes. It reassigned her to a uniformed job in the Department’s Fifth District. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not.


In later deposition testimony, Muldrow set out her view of what the transfer had cost her. She had been moved out of a “premier position [in] the Police Department” into a less “prestigious” and more “administrative” uniformed role. She had fewer “opportunities” to work on “important investigations,” as well as to “network” with commanding officers. And she lost material benefits—her weekday work schedule and take-home car. Or as she summarized the situation: “I went from straight days, weekends off with a take-home car and more visibility and responsibility within the Department to a rotating schedule with few weekends off, assigned to . . . uniformed patrol,” with “responsibilities being limited to that of administrative work” and “supervising officers on patrol.”

Muldrow brought this Title VII suit to challenge the transfer. Her complaint alleged that the City, in ousting her from the Intelligence Division, had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment. §2000e–2(a)(1).



Majority (J. Kagan), Reasoning That an Employee Need Not Show an Injury Satisfies a Significance Test When It Comes to Title VII Claims, Though Some Harm Must Be Shown.


  1. Title VII makes it unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
  2. A transfer implicates terms and conditions of employment as it changes nothing less than the what, where, and when of plaintiff’s police work.
  3. Statutory language applicable to this case prohibits discriminating against an individual with respect to the terms or conditions of employment because of that individual’s sex. Therefore, plaintiff has to show that the transfer brought about some disadvantageous change in employment terms or conditions.
  4. The words “discriminate against,” refer to differences in treatment that injure employees. In other words, the statute targets practices that treat a person worse because of sex or other protected trait.
  5. In the typical transfer case, that worse treatment pertains to employment terms or conditions.
  6. The “terms or conditions” phrase, is not used in the narrow contractual sense. Instead, it covers more than economic or tangible situations. The phrase does circumscribe the injuries giving rise to a Title VII suit. As such, making out a Title VII discrimination claim means a plaintiff has to show some harm respecting identifiable terms or conditions of employment.
  7. A plaintiff does not have to show according to the relevant statutory provisions that the harm incurred was significant. For that matter, a plaintiff does not have to show that the harm was serious, substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. While it is true that “discriminate against,” means treating worse (in this case based upon sex), neither that phrase nor any other says anything about how much worse. There is nothing in the statutory provision to distinguish between transfers causing significant disadvantages and transfers causing not so significant ones.
  8. To demand “significance,” adds additional significant words to the statute Congress enacted. It would also mean imposing a new requirement on a Title VII plaintiff so that the law as applied demands something more of the plaintiff than the law as written. Such an addition, can make a real difference for people complaining about a wrongful transfer. Many forced transfers leave workers worse off respecting employment terms or conditions. If you add a significance tests, the answers become completely variable and subject to the eye of the beholder (the court then reviews a series of cases indicating just how arbitrary the “significance,” standard can be).
  9. The majority opinion in a footnote specifically points out its disagreement with Justice Thomas’s concurring opinion by saying that the majority opinion does change the legal standard used in any circuit previously requiring “significant,” “material,” or “serious,” injury. The majority makes it clear that this opinion lowers the bar that Title VII plaintiff’s must meet. In other words, prior cases that failed under the heightened tests imposed by certain circuits will now succeed.
  10. The relevant statutory provisions share the trait that each kind of prohibited discrimination occurred by way of an employment action-whether pertaining to hiring, firing, or compensating, or altering terms or condition through a transfer. As such, that is more than sufficient to unite the provision’s several parts, and there is no need for courts to introduce a significant harm requirement.
  11. Retaliation is a completely different concept than discrimination. In a retaliation situation, you are talking about things that dissuade a reasonable worker from making or supporting a charge of discrimination. However, in the antidiscrimination context, a person simply seeks a workplace where individuals are not discriminated against because of a protected characteristic. Therefore, the discrimination provisions flatly prevent injuries to individuals based upon the protected characteristic without distinguishing between significant and less significant harms.
  12. The antidiscrimination provision at issue does require that a plaintiff show some injury. It also requires that the injury asserted concerning the terms or conditions of her employment. Finally, it requires that the employer acted for discriminatory reason-because of a protected characteristic.
  13. Even if this decision open the floodgates to Title VII claims, that is the result of a statute that Congress drafted and it’s not for the Court to step in. That is, the Court will not add words to the law in order to achieve what some employers might think is a desirable result.
  14. Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so but it didn’t.
  15. Plaintiff need only show some injury respecting her employment terms or conditions. That is, the transfer must have left her worse off, but need not have left her significantly worse off. Plaintiff’s allegations meet that standard. In particular: 1) she was moved from a plainclothes job in a prestigious special light division giving her substantial responsibility over priority investigation and frequent opportunity to work with commanders; 2) she was moved to a uniform job supervising one district’s control officers, in which she was less involved in high visibility matters and primarily performed administrative work; and 3) her schedule became less regular, often requiring her to work weekends and she lost her take-home car.
  16. On remand, the lower courts will need to consider whether the plaintiff forfeited any arguments, she may have done so, and whether she provided sufficient adequate evidentiary support.



Justice Thomas Concurring Opinion


  1. There is little practical difference between a standard requiring a plaintiff to show harm that is more than trifling with what the majority opinion holds.
  2. Justice Thomas is not convinced that the Eighth Circuit applied a heightened standard. However, Justice Thomas does recognize that the terms “material,” and “significant,” can (but do not always), imply a heightened harm requirement. Therefore, he agrees with vacating and remanding to the extent that the Eighth Circuit’s opinion is inconsistent with a more than trifling harm requirement.



Justice Alito Concurring Opinion


  1. The majority states that a Title VII plaintiff must show that the event they challenge constituted a harm or injury, but the event need not be significant or substantial.
  2. Justice Alito has no idea what the majority standard actually means, and he can only imagine how that standard will be greeted by lower court judges.
  3. Justice Alito sees little substantive difference between the terminology of the majority opinion and the terminology the majority opinion doesn’t like. That will only lead to lower court judges minding the words they use and continuing to do pretty much just what they have done for years.



Justice Kavanaugh Concurring Opinion


  1. Even when a transfer does not change an employee’s compensation, a transfer does change the employee’s terms, condition, or privileges of employment. Therefore, a transfer made on the basis of an employee’s protected characteristic violates Title VII.
  2. Transferring a person because of a protected characteristic violates Title VII because the employer had treated that person differently because of that protected characteristic regardless of whether there is a change in compensation.
  3. A transfer change of the terms, conditions, or privileges of employment. Therefore, a discriminatory transfer violates the plain text of Title VII.
  4. Justic Kavanaugh fully agrees with the Court’s rejection of prior court holding that a significant employment disadvantage is necessary in order to maintain such cases.
  5. Justice Kavanaugh disagrees with the Court’s new some-harm requirement for several reasons: 1) no court has adopted a some-harm requirement; 2) no party or amicus advocated that requirement to the Supreme Court; 3) and the text of Title VII does not require a separate showing of some harm because the discrimination is the harm.
  6. The only question is whether the relevant employment action changes the compensation, terms, conditions, or privileges of employment. A transfer does exactly that.
  7. The Court’s new some-harm requirement appears to be a relatively low bar. Importantly, the Court emphasizes that “some harm,” is less than significant harm, serious harm, or substantial harm. Accordingly, anyone transferred because of a protected characteristic should easily be able to show some additional harm-whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, entrance level, perch, professional relationship, networking opportunities, effects on family obligations, or the like. Therefore, the Court’s approach and Justice Kavanaugh’s approach of getting rid of the some-harm standard altogether should land in the same place and lead to the same result in 99% of discriminatory transfer cases, if not in 100% of those cases.



Applicability of Decision to Whether Adverse Action on Top of a Failure to Accommodate Will Be Required Going Forward/thoughts-takeaways


  1. Title VII does not apply to disability discrimination, so keep that in mind when I use the term “protected characteristic,” in this blog entry.
  2. 42 U.S.C. §12112(a) (Title I), states: “no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” Title II of the ADA has very similar language but uses “by reason of,” for its causation language. Title III of the ADA also has similar language and also uses “on the basis of,” for causation.
  3. The language of 42 U.S.C. §12112(a)-the general rule provision,- is virtually identical to the language in Title VII. The only difference is that Title VII uses “because of,” and Title I uses, “on the basis of.” So, the reasoning of the opinions in Muldrow should apply equally to Title I claims. Further, 42 U.S.C. §12112(b)(5)-the failure to make reasonable accommodations as discrimination provisions,-does not contain anything indicating a heightened standard of harm being necessary either. In fact, nothing in 42 U.S.C. §12112(b)(5) suggests a heightened adverse action standard being necessary.
  4. I know of one court already that is asking for briefing on whether this case changes the paradigm for requiring an additional adverse action in a failure to accommodate claim. My reading of Muldrow is the answer to that question is absolutely that it does. I don’t see how you can read the opinions in Muldrow otherwise.
  5. Not every judge gets disability, so nothing changes with the best approach being to be sure in a complaint to give as many facts as possible to show that the adverse action caused some harm so that no reasonable person could think otherwise. The same goes for describing in the complaint what disability a plaintiff has.
  6. A failure to accommodate is most certainly an adverse action. As a person with a disability, I have seen the difference when I have asked for accommodations needed to get me to the same starting line because of my disability and received them v. when I have asked and not received them. For example, I can think of the difference in being able to fully participate or equally enjoy an activity when I attend meetings and stay in hotels in terms of when I get accommodations v. when I don’t. Certainly, in my opinion, the some-harm standard is automatically met when there is a failure to accommodate a person with a disability.
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.