How does Muldrow affect discriminatory hostile work environment claims?

 In researching recent legal developments for an upcoming Continuing Legal Education seminar, I have discovered a split among the circuit courts about how to apply the Supreme Court's recent decision in Muldrow v. City of St. Louis (2024), which relaxes the plaintiff's burden in proving adverse actions in disparate treatment claims, rejecting the prevailing rule that plaintiffs must show the personnel action significantly or materially affected a term or condition of employment; now, the plaintiff only need prove "some harm." In hostile work environment cases under federal law, the plaintiff show the abusive conduct was severe or pervasive, a test devised by the Supreme Court in Meritor v. Vinson (1986). Does Muldrow apply to hostile work environment cases? Here is the research. Bear in mind the Second Circuit has yet to conclusively resolve this issue.

 

Kellar v. Yunion, Inc., 157 F.4th 855 (6th Cir. 2025): While Muldrow addressed an adverse employment action (an employee transfer), the Sixth Circuit extends this holding to hostile-work-environment claims, recognizing that such claims are similarly based on a disadvantageous change to a term, condition, or privilege of employment. As the discrimination statutes do not require a heightened showing of harm, courts “should ask whether a work culture permeated with discriminatory harassment ‘left an employee ‘worse off respecting employment terms or conditions,’ not whether an employee was significantly worse off.” Accordingly, post Muldrow, “courts cannot require a plaintiff to show that he suffered a heightened level of harm to succeed on a hostile-work-environment claim. For summary judgment purposes, once a plaintiff provides evidence that the environment itself was objectively hostile to the protected class, so long as the hostility ‘produce[d] ‘some harm respecting an identifiable term or condition of employment,’ he meets his burden.”

 

McNeal v. City of Blue Ash, 117 F.4th 887 (6th Cir. 2024): “Because hostile-work-environment claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show ‘significant’ harm applies to both types of claims. Instead, the employer's discriminatory action—or, as is the case here, the work environment—needs to produce ‘some harm respecting an identifiable term or condition of employment.’ Thus, when we consider whether a hostile-work environment was severe or pervasive enough to violate Title VII, we effectively ask whether it left an employee “worse off respecting employment terms or conditions.” Citing Muldrow, the Sixth Circuit holds that “a jury could conclude that McNeal was denied the discretion granted to other officers, qualifying as a ‘disadvantageous’ change in an employment term or condition.’”

 

A post-McNeal ruling from the district court in Ohio interprets McNeal to alter the standard guiding hostile work environment claims. In Aarnes v. Ohio State Univ., No. 2:24-CV-2146, 2025 WL 2734171, at *7 (S.D. Ohio Sept. 25, 2025), the court stated:

 

a plaintiff need only demonstrate that the employer's discriminatory work environment resulted in “‘some harm respecting an identifiable term or condition of employment.’” McNeal, 117 F.4th at 904 (quoting Muldrow, 601 U.S. at 355). The relevant inquiry is whether the work environment left an employee “worse off respecting employment terms or conditions.” Id. Despite the lowered threshold, courts continue to evaluate hostile-work-environment claims based on the totality of the circumstances, “including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.’” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787– 88 (1998)). 

 

 

District courts have begun applying this standard. See, e.g., Yoder v. Ohio State Univ., 2025 WL 755276, *8 (S.D. Ohio Mar. 10, 2025) (applying the factors and the “worse off” standard when resolving a motion for judgment on the pleadings on a hostile-work-environment claim post-McNeal); Collins v. City of Detroit, 2025 WL 1019754, *7 (E.D. Mich. Apr. 4, 2025) (applying McNeal and finding that “the plaintiff is not required to allege any particular level of egregious mistreatment, only to describe a totality of instances sufficient to alter the conditions of her employment in some way.”).

In contrast, the Tenth Circuit does not find that Muldrow affects the hostile work environment analysis. In Russell v. Driscoll, 157 F.4th 1348 (10th Cir. 2025), the Court of Appeals stated that “an inquiry into the severity or pervasiveness of the complained-of conduct is integral to determining whether any actionable Title VII injury occurred. Stated differently, if Muldrow implicitly abrogated the severity/pervasiveness analysis for a hostile-environment claim (as Russell contends), then Muldrow abrogated the hostile-environment claim. But the Supreme Court has made clear that the severity/pervasiveness inquiry is ‘crucial’ for “prevent[ing] Title VII from expanding into a general civility code.” Russell cites two unpublished appellate rulings in support of its analysis:

 

The Fourth Circuit, in an unpublished decision, reached essentially the same conclusion about Muldrow as we reach here, although its analysis is brief and it is unclear if Muldrow’s effect on hostile-environment claims was actually a contested issue in that case. See Hansley v. DeJoy, No. 23-1426, 2024 WL 4947275, at *2 (4th Cir. Dec. 3, 2024). The Fifth Circuit, also in an unpublished decision, rejected an argument that Muldrow applies to hostile-environment claims, but its reasoning appears to rest as much on the plaintiff's failure to develop the argument as it does on the underlying substance. See Dike v. Columbia Hosp. Corp. of Bay Area, No. 24-40058, 2025 WL 315126, at *5 n.25 (5th Cir. Jan. 28, 2025).

 

Russell expressly disagrees with the Sixth Circuit’s analysis in McNeal, stating that “[i]t seems circular to ask ‘whether [the hostile work environment] left an employee ‘worse off respecting employment terms or conditions.’’  By definition, a legally actionable ‘hostile’ work environment is one so bad it ‘alter[s] the conditions of the victim's employment.’ To say that Muldrow changed this for hostile-environment claims is essentially to say that Muldrow gutted the very thing that distinguishes hostile-environment claims from discrete-act claims.”

 

Hinds v. PSEG Long Island LLC, No. 23-CV-08701 (RER) (LGD), 2026 WL 266010, at *7 n.5 (E.D.N.Y. Feb. 2, 2026): a judge in the Eastern District of New York sidestepped this issue. While noting that Muldrow is not limited to job-transfer cases, “Where Muldrow does not consistently extend is to hostile work environment claims, which Hinds claims in this case. Muldrow expressly does not alter the standard for an adverse employment action under federal retaliation claims, also at issue in this case, which still must be ‘material’ and ‘significant.’” Muldrow, 601 U.S. at 348.

 

Ziparo v. CSX Transportation, Inc., 160 F.4th 314 (2d Cir. 2025): “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).”