January 1, 2025
Federal courts are poised in the new year to tackle big questions spurred by the U.S. Supreme Court’s April opinion easing the requirements for bringing workplace bias claims, including which anti-discrimination laws and job actions are subject to the new standard, and how the decision affects workplace diversity programs.
In Muldrow v. St. Louis, the justices unanimously disavowed the lofty legal hurdles that some lower courts have imposed to block workplace discrimination cases over employment actions considered to have less serious consequences for the worker. The high court held that employees need not show they faced “significant” harm from a workplace action to bring a discrimination lawsuit under Title VII, but rather “some harm.”
As the case arose in the context of Title VII of the Civil Rights Act, experts said it’s not yet clear if the new lowered harm threshold can be invoked by employees bringing claims under other anti-discrimination laws, like the Americans with Disabilities Act.
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Harini Srinivasan, an attorney at worker-side firm Cohen Milstein Sellers & Toll PLLC who co-chairs the firm’s hiring and diversity committee, said the outcome of Scheer’s battle will have significant implications for Muldrow.
“How things play out with Scheer will be a really important spotlight on Muldrow,” she said.
A decision backing the EEOC’s position would make the Tenth Circuit at least the third federal appellate court to find that ADA plaintiffs can invoke Muldrow. The First and Eleventh circuits have already said they can.
This extension may also create support for the argument that the justices’ revamped harm test stretches to other laws, including the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866, a federal law prohibiting bias based on race, color and ethnicity in making and enforcing contracts.
Srinivasan said the ADA-focused dispute could serve as a kind of gateway to other discussions, as she said Title VII updates often are initially employed in the disability discrimination context before they’re applied to other laws.
“That has always tended to be the order of progression when there have been meaningful changes to Title VII,” Srinivasan said. “Practitioners will be watching that to understand how to champion Muldrow’s expansion to these other statutes.”
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Muldrow’s Impact on DEI
Another topic of debate is whether Muldrow fortifies the current attacks on workplace DEI programs.
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However, expert opinions differ. Cohen Milstein’s Srinivasan told Law360 that Muldrow isn’t the “silver bullet” against DEI that some have made it out to be.
“In DEI programs, by their nature, they don’t single out individuals or create disadvantages,” Srinivasan said. “When done well, they work to expand opportunities and level the playing field.”
Read Courts Will Flesh Out High Court’s Muldrow Ruling In 2025.