Tenth Circuit Holds that Muldrow Some-Harm Standard Applies in ADA Cases
In its 2024 Muldrow v. City of St. Louis decision, the U.S. Supreme Court expanded employee protections in Title VII discrimination cases by redefining what “adverse” employment action means. For almost three decades, courts understood that a Title VII plaintiff must prove that their employer took “material” or “significant” adverse action against them based on their protected class. Actions like discharge, demotion, and other decisions that impacted employee pay and promotional opportunities were considered sufficiently “material” adverse action. Less severe adverse actions that did not significantly change employment status (e.g., reassignment) did not necessarily qualify as adverse action.
That changed in Muldrow. The Supreme Court defined adverse action in Title VII discrimination cases to include all employment decisions that cause “some harm” on an employee. Reassignment tied to diminished responsibility and prestige was sufficiently adverse because it imposed “some harm” on the employee.
On July 21, 2025, the U.S. Tenth Circuit Court of Appeals applied the Muldrow some-harm standard to a disability discrimination claim arising under the Americans with Disabilities Act (ADA) and Rehabilitation Act. In Scheer v. Sisters of Charity of Leavenworth Health System, Inc., an employee (Sheer) with job performance problems disclosed that she was experiencing “personal issues” and suicidal ideation. The employer revised a Performance Improvement Plan (PIP) to include a mandatory referral to the company’s employee assistance program (EAP) for counseling. Sheer refused to receive EAP counseling and was discharged. A lawsuit followed, where a federal district court, applying pre-Muldrow precedent, granted summary judgment to the employer because mandatory counseling did not cause a “significant change” to Sheer’s employment and therefore was not adverse action. On appeal, the 10th Circuit joined its sister circuits (1st, 5th, 6th and 11th) in holding that “Muldrow’s some-harm standard applies not only to Title VII claims, but also to ADA claims.” The court reversed and remanded to the district court to evaluate Sheer’s claims under that lower standard.
DOJ Issues DEI Warning to Federal Funding Recipients
On July 29, 2025, in the Trump Administration’s latest effort to place Diversity, Equity & Inclusion (DEI) policies and programs under scrutiny, the U.S. Department of Justice (DOJ) issued guidance “to ensure that recipients of federal funding do not engage in unlawful discrimination” including practices “labelled as Diversity, Equity, and Inclusion (“DEI”) programs.” The DOJ guidance provides examples of “unlawful practices that could result in revocation of grant funding,” including:
· “Cultural competence” requirements, such as requiring job applicants to demonstrate “lived experience” or “cross-cultural skills.”
· Geographic targeting, i.e., “recruitment strategies targeting specific geographic areas . . . chosen primarily because of their racial or ethnic composition rather than other legitimate factors.”
· Race-based “diverse slate” hiring policies that require a minimum number of candidates from specific racial groups be included in those selected to interview for a position.
· Training that “promotes” discrimination with “statements stereotyping individuals based on protected characteristics—such as ‘all white people are inherently privileged’ or ‘toxic masculinity,’ etc.”
The DOJ supplements its list of do-nots with a list of “recommendations on best practices,” including to focus on skills and qualifications, document legitimate rationales, eliminate diversity quotas and establish clear anti-retaliation policies. All good points. And in a bit of a surprise, the DOJ’s first recommended best practice to avoid unlawful DEI practices is to “ensure inclusive access.” That’s good advice, too. But it does beg the question: Does the DOJ know what “I” stands for in “DEI?”
