Where Muldrow Ends: Tenth Circuit Refuses to Extend Relaxed Harm Standard to Hostile Work Environment Claims

Quick Hits

• Muldrow’s lowered standard of harm for discrete discriminatory acts under Title VII does not apply to hostile work environment claims, according to the Tenth Circuit.
• A circuit split exists on this issue, with the Sixth Circuit reaching the opposite conclusion.
• Employers may face different standards for hostile work environment claims depending on jurisdiction.

Background

In Russell v. Driscoll, a civilian employee at a U.S. Army hospital alleged that his female supervisor treated the men in her division poorly compared with female employees. Following multiple complaints, the Army investigated and determined that the supervisor had, in fact, engaged in gender discrimination in violation of the Army’s equal-opportunity policy.

The employee filed internal complaints, followed by a lawsuit claiming that his supervisor had created a hostile work environment in violation of Title VII. The federal district court granted summary judgment for the Army, finding that the supervisor’s actions did not meet the standard for establishing an unlawful hostile work environment.

Legal Framework

Title VII prohibits discrimination based on sex, encompassing two major categories: (1) discrete discriminatory acts arising from specific employment decisions (such as discharge or demotion) and (2) hostile work environment harassment claims based on a series of smaller actions that add up to create a negative work environment.

The Supreme Court’s decision in Muldrow resolved a circuit split over whether an employee “must meet a heightened threshold of harm—be it dubbed significant, serious, or something similar” to assert a viable Title VII discrimination claim based on a discrete employment action. The Court rejected the heightened standard, holding that an employee “need show only some injury respecting her employment terms or conditions.” (Emphasis added).

For hostile work environment claims, long-standing Supreme Court precedent requires an employee to show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Courts have traditionally viewed this as setting a high bar for such claims.

The Court’s Opinion

The employee argued that Muldrow’s lessened standard should apply to hostile work environment claims in addition to discrete employment action claims. The Tenth Circuit disagreed, holding that the Supreme Court had not expressly overruled its standard for hostile work environment claims and that Muldrow’s analysis was not applicable to such claims. As the court explained, the severe or pervasive nature of the underlying conduct “is integral to determining whether any actionable Title VII injury occurred” and applying the Muldrow standard would wholly undermine the hostile work environment claim.

In arriving at this holding, the Tenth Circuit noted that the Sixth Circuit had reached a different result, though it was unclear whether Muldrow’s impact on hostile work environment claims was actually contested in that case. The Tenth Circuit strongly rejected the Sixth Circuit’s ruling, asserting that applying Muldrow would essentially “gut[] the very thing that distinguishes hostile-environment claims from discrete-act claims.”

The Tenth Circuit also noted that the Fourth and Fifth Circuits had issued unpublished decisions (which carry less weight as precedent) aligning with the Tenth Circuit’s approach, although, like the Sixth Circuit case, it was unclear whether the issue was actually contested in either case.

Takeaways for Employers

At least in the Tenth Circuit—and likely in the Fourth and Fifth Circuits—employers can take some reassurance that employees must still meet a high bar to establish a viable hostile work environment claim under Title VII. But as other courts consider the issue, the existing circuit split may deepen, and different standards could apply across jurisdictions—unless and until the Supreme Court provides a definitive answer.

Ogletree Deakins’ Employment Law Practice Group will continue to monitor developments and will provide updates on the Employment Law and State Developments blogs as additional information becomes available.

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