How does Muldrow affect sexual harassment "severe or pervasive" cases?

In 2024, the Supreme Court changed the rules guiding adverse employment actions under Title VII, holding that plaintiffs can sue over personnel decisions that inflict "some harm" even if the harm is not "material," such as termination, demotion, or docked pay. That case, Muldrow v. City of St. Louis, 601 U.S. 346 (2024), rejected the Second Circuit's materiality test and made it easier for plaintiffs to win their cases. The question is now whether Muldrow has any effect on the "severe or pervasive" test governing hostile work environment cases.

In Ziparo v. CSX Transportation, issued on November 25, the Second Circuit (Sack, Nardini and Perez) addresses this issue in a footnote. The Court did not have squarely resolve this question because it was not central to Ziparo's case. But it does show this issue is on the Second Circuit's radar. Look at it this way: the existence of a hostile work environment in a sexual or racial harassment case is the adverse action over which the plaintiff is bringing the lawsuit. Is the "severe or pervasive" standard guiding whether the plaintiff suffered a hostile work environment affected by Muldrow? The Second Circuit addresses this in a footnote:

The effect of Muldrow on discriminatory hostile work environment claims is still unclear: Post-Muldrow, the Sixth Circuit has held that Muldrow applies to such claims and no longer requires “plaintiffs to show ‘significant’ harm.” McNeal v. City of Blue Ash, 117 F.4th 887, 904 (6th Cir. 2024). But see Dike v. Columbia Hosp. Corp. of Bay Area, No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025) (summary order) (rejecting the plaintiff’s argument that Muldrow changed the severe-or-pervasive test). We have not yet opined on Muldrow’s impact on discriminatory hostile work environment claims,

and the question is not before us here.

This footnote is an invitation for plaintiffs' lawyers to attack the "severe or pervasive" test -- regarded as a burdensome legal standard for plaintiffs -- has having been implicitly repudiated by Muldrow.