From “Significant Change” to “Some Harm”: Muldrow Applies to Title VII and the ADA in the Eleventh Circuit

The United States Supreme Court’s 2024 decision in Muldrow v. City of St. Louis, 144 S. Ct. 967 (2024), lowered the threshold for what constitutes an adverse employment action in Title VII discrimination claims. For decades, courts required proof of a material or significant change to the terms or conditions of employment, such as discharge, demotion, or decisions directly affecting pay or promotional opportunities. Lesser actions, including lateral transfers or reassignments without changes in pay or benefits, were generally not actionable.

In Muldrow, the Court held that an employee needs only to show that the employment action caused some harm to the terms, conditions, or privileges of employment. A reassignment with diminished responsibilities and prestige was sufficient to meet this new standard.

Although Muldrow arose in Title VII context, the Eleventh Circuit has expressly applied this lower threshold to ADA claims. In Davis v. Orange County, No. 23-12759, 2024 WL 3507722 (11^th Cir. 2024), the Eleventh Circuit vacated a district court judgment that had dismissed a plaintiff’s retaliation claims, including those brought under the ADA, without considering Muldrow. The court instructed the district court to reexamine the claims using the “some harm” standard. This decision confirms that the same adverse action test applies to both Title VII and the ADA within the Eleventh Circuit.

The Tenth Circuit reached the same conclusion in Scheer v. Sisters of Charity of Leavenworth Health System, Inc., No. 23-3127 (10th Cir. July 21, 2025). In Scheer, the plaintiff disclosed mental health struggles and was placed on a revised performance improvement plan that included mandatory counseling through the company’s Employee Assistance Program. She refused to authorize the program to confirm her participation and was discharged. The district court applied the pre-Muldrow standard and ruled that the counseling referral was not an adverse action because it did not cause a significant change in employment conditions. The Tenth Circuit reversed, holding that Muldrow’s “some harm” standard applied to ADA claims and remanded the case for further proceedings.

For Florida employers, the impact of Muldrow, reinforced by Davis and Scheer, is significant. Actions once deemed too minor to support a discrimination claim can now qualify if they cause any harm to the employee’s work experience. Written reprimands, mandatory counseling referrals, performance improvement plans, or changes to job duties may all be considered adverse actions under the lower threshold, even if they do not affect pay, title, or benefits.

Compliance Checklist for Florida Employers under the “Some Harm” Standard

• Review all performance management, discipline, and accommodation policies to ensure they cannot be construed as punitive when addressing medical or disability-related issues.

• Evaluate the language in performance improvement plans and disciplinary notices to confirm they are framed as supportive measures and not as penalties.

• Train human resources personnel and managers on the lowered “some harm” threshold and the importance of avoiding employment decisions that could be interpreted as retaliatory or discriminatory.

• Reassess wellness programs, employee assistance program referrals, and mandatory evaluations to confirm they are voluntary where possible and that participation requirements are communicated clearly and neutrally.

• Ensure confidentiality protocols are robust, especially when handling information about employee health or counseling participation.

• Monitor changes in job duties, schedules, or locations to determine whether they could be perceived as diminishing responsibility, prestige, or access to opportunities.

By taking these proactive steps, Florida employers can reduce the likelihood of inadvertently triggering a claim under either Title VII or the ADA in the post-Muldrow environment.