Dallas Employment Trial Lawyer Austin Campbell
Summary: This article discusses a possible future application of the reasoning in Muldrow v. St. Louis, by comparing that case to past decisions that set up the “severe or pervasive” standard.
I previously wrote about the U.S. Supreme Court’s decision in Muldrow v. City of St. Louis, in which the Court made it clear that discrimination is unlawful as long as it causes “some” harm. A plaintiff does not have to meet some arbitrary bar of “significant” harm just to bring their case. Any disadvantageous change in the “terms, conditions, or privileges of employment,” if done for an unlawfully discriminatory reason, violates Title VII. This article explores one area, hostile work environment claims, where Muldrow’s reasoning could also apply.
The Muldrow decision was specifically about transfers, and logically it is clear that it covers other types of adverse actions that affect terms or conditions of employment. What is somewhat murkier is whether its reasoning extends to situations without a single clearly defined adverse action, such as a hostile work environment. In Texas, a federal court in Dallas just looked at this issue in Zuniga v. City of Dallas, No. 3:23-CV-2308-D (N.D. Tex. May 28, 2024). Unfortunately, in that case the court decided that because the standard for a hostile work environment had been “high” in prior cases, and Muldrow did not specifically address the issue, it did not apply. In my view, the reasoning in Zuniga is exactly the sort of reasoning that Muldrow already rejected.
That becomes clear when you look at the origin of how courts analyze modern workplace harassment claims. Title VII prohibits unlawful harassment based on the same language from Title VII at issue in Muldrow: that an employer cannot “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Less than a decade after Title VII’s passage into law, the Fifth Circuit had acknowledged that “the phrase ‘terms, conditions, or privileges of employment’ . . . is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.” Rogers v. E.E.O.C., 454 F.2d 234, 238 (5th Cir. 1971). In Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986), the Supreme Court agreed—although it stated that “not all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VII.” As a result, that decision went on to conclude that to be illegal, a hostile work environment “must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” This “sufficiently severe or pervasive” standard is still used for all Title VII hostile work environment claims today.
The Zuniga decision relied on another Supreme Court decision, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993), to conclude that this “severe or pervasive” standard is a “high” one that is not “lowered” by Muldrow. But Harris doesn’t say that. What it does say is that
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.
But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.
. . . .
Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive . . . there is no need for it also to be psychologically injurious.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). That doesn’t seem like that high of a bar to me. Certainly not a higher one than any other Title VII claim. Still, at bottom what the Harris Court considered important was whether the harassment “sufficiently affect[s] the conditions of employment to implicate Title VII.”
Look at all this language from Rogers, Meritor, Harris, and Zuniga. It is full of extra modifiers such as “heavily charged,” “sufficiently severe or pervasive,” “sufficiently affect[s] the conditions of employment.” That reminds me of nothing so much as the “significant harm” modifier the Supreme Court rejected in Muldrow. There, the Court expressly rejected the very idea of a discrimination claim having a “heightened” or “elevated” bar. Rather, “’[d]iscriminate against’” means treat worse,” nothing more or less. If courts should apply Title VII as written, then there is nothing in Title VII about only “severe or pervasive” harassment being illegal. To put it another way, though “severe or pervasive” is supposed to be a proxy for whether something affects the terms or conditions of employment, functionally it adds an extra step to the analysis, just like “significant” did in Muldrow. Based on that reasoning, there should not be a focus on some hard-to-define “high” bar for hostile work environment claims or parsing whether something is “sufficiently severe or pervasive.” Instead, to be consistent to Muldrow and Title VII you should just ask: is there “some injury respecting . . . employment terms or conditions”? I suspect many “not severe or pervasive” hostile work environments would meet that bar.
Now, from a practical standpoint, I have little doubt courts will find some new set of modifiers to limit hostile work environment claims even if Muldrow does extend to them. It seems inevitable that judges’ personal perceptions and experiences will color what hostile work environment claims are allowed to go forward. But if nothing else, it might be good for a new standard to emerge so that courts can update their understanding of what would reasonably be perceived as abusive or hostile, instead of anchoring themselves to conduct from decades or even generations past.
If you believe your employer has discriminated against you by making the terms or conditions of your work worse for an illegal reason, you should talk to an employment attorney like those at Rob Wiley, P.C.