Clarifying the Limits of Muldrow: Hostile Work Environment Standard Remains Intact

In April of last year, the Supreme Court held that employees alleging discrimination under Title VII only need to show “some harm” to the terms and conditions of their employment in order to prove that they suffered an adverse employment action, unanimously rejecting the heightened “significant harm” standard followed previously by many lower courts.  The Muldrow decision, which we previously discussed, significantly lowered the (already low) bar to bring an employment discrimination claim.  Importantly, however, Muldrow did not address whether the lower standard of “some harm” applied to Title VII claim for hostile work environment.

Last week, the Tenth Circuit weighed in on this question in Russell v. Driscoll, finding that the lower standard for adverse employment actions announced in Muldrow does not apply to hostile work environment claims. As such, employees must still show that the workplace is permeated with conduct that is sufficiently severe or pervasive in nature. 

Background

Paul D. Russell, a civilian Army employee, brought a Title VII discrimination claim alleging his female supervisor, Major Tamara Tran, treated him and other men in her division with antagonism and contempt, thus creating a hostile work environment based on gender. Some of the conduct he identified in support of his claim included changing his title to reflect less authority, holding gender-segregated meetings, requiring men but not women to schedule meetings with her, removing Russell from an email list meant for leadership, and publicly criticizing Russell’s decisions made while he was acting chief.

An internal investigation by the Army concluded that Tran had discriminated against Russell based on gender and created a hostile work environment in violation of Title VII. Russell filed a Title VII hostile work environment claim in federal court, which was eventually dismissed on summary judgment, for failure to demonstrate conduct that was severe or pervasive. Russell appealed this decision to the Tenth Circuit. 

The Tenth Circuit’s Analysis

On appeal, Russell’s primary argument was that the District Court applied the incorrect standard for hostile work environment following the Supreme Court decision in Muldrow. Russell argued that Muldrow lowered the bar for proving Title VII claims and urged the Tenth Circuit to apply the more lenient “some harm” standard to hostile work environment claims, rather than the “severe or pervasive” standard. 

However, the Tenth Circuit rejected the notion that Muldrow altered the hostile work environment standard, holding that Muldrow’s “some harm” rule applied to discrete acts (e.g., transfers, reassignments, etc.), and did not affect hostile work environment claims which are based on “severe or pervasive” conduct. The court explained that Title VII recognizes two distinct types of claims: (1) discrete discriminatory acts (specific employment decisions like firing, demotion, transfer, etc.) and (2) hostile work environment (a pervasive pattern of ongoing harassment). Hostile work environment claims typically involve repeated conduct that “permeates” the workplace with intimidation or ridicule repeated over a series of days or even years, whereas Muldrow dealt with a discrete discriminatory act involving a single transfer decision. The Tenth Circuit refused to apply Muldrow’s “some harm” test to hostile work environment claims because doing so would “gut[] the very thing that distinguishes hostile-environment claims from discrete-act claims.”

The Tenth Circuit also rested its decision on Supreme Court precedent emphasizing that the “[c]ourt of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989). Accordingly, the Tenth Circuit concluded that hostile work environment claims remain subject to existing Supreme Court precedent, until the Court itself determines otherwise, exactly as it did in Muldrow relating to discrete discriminatory acts. 

Key Takeaways: 

Employers should note that the Russell decision is only binding on courts within the Tenth Circuit, and other Circuit or District courts may come out differently on the issue of whether Muldrow applies to hostile work environment claims. At least one federal appellate court, the Sixth Circuit, has left open the possibility that Muldrow might also apply to hostile work environment claims. It also remains to be seen whether lower courts will apply the Muldrow “some harm” standard to retaliation claims. 

Finally, it is worth noting that the courts reached a different conclusion than the Army’s internal investigation as to whether the conduct at issue created a hostile work environment.  This is a good reminder to employers that reasonable minds can differ as to what constitutes a hostile work environment.  Nevertheless, even if allegedly biased conduct does not rise to the level of creating a hostile work environment, it still must be acknowledged, investigated, and appropriately addressed. Internal findings present an opportunity to remediate problems before they escalate, regardless of whether they meet the legal threshold.