The Third Circuit’s First Significant Application Of Muldrow: Revisiting The Adverse Employment Action Standard

For decades, courts have wrestled with what constitutes an “adverse employment action” under federal employment discrimination laws. While employees have never been required to show a reduction in pay or formal demotion to establish a discrimination claim, many courts came to require plaintiffs to demonstrate a significant or materially adverse change in the terms and conditions of employment.

The Supreme Court’s 2024 decision in Muldrow v City of St. Louis rejected that heightened approach under Title VII, holding that an employee need only show “some harm” with respect to a term, condition, or privilege of employment. The Third Circuit’s recent decision in McCrorey v. City of Philadelphia is one of the first significant applications of Muldrow within the circuit and provides guidance regarding the application of Muldrow’s “some harm” standard.

Understanding The Case

John McCrorey, a 61-year-old lieutenant with the Philadelphia Police Department, served in the department’s Narcotics Field East Division, where he oversaw narcotics enforcement operations in Kensington. In 2020, the department transferred him to the Northwest Division as part of a broader organizational restructuring.

Although McCrorey retained his rank, title, and base salary, he alleged that the new assignment was less prestigious and provided fewer opportunities for overtime, professional visibility, and career advancement. He filed suit alleging age discrimination under the Age Discrimination in Employment Act (“ADEA”).

The district court granted summary judgment in favor of the City, concluding that McCrorey had not suffered an adverse employment action because the transfer did not result in a sufficiently significant change in compensation or employment status.

While the appeal was pending, however, the Supreme Court issued its decision in Muldrow, requiring courts to reevaluate what level of harm is necessary to satisfy the adverse-action requirement.

The Significance of Muldrow

Prior to Muldrow, many courts required plaintiffs to demonstrate a materially adverse or significant change in employment conditions before a discrimination claim could proceed. Under those standards, employers frequently argued that transfers, reassignments, and similar personnel actions did not satisfy the adverse-action requirement where pay, benefits, and job title remained unchanged.

In Muldrow, the Supreme Court rejected the requirement that an employee show a significant employment disadvantage. Instead, the Court held that a plaintiff need only establish “some harm” affecting a term, condition, or privilege of employment.

Importantly, Muldrow did not hold that every transfer or reassignment automatically gives rise to liability. Rather, the decision clarified that courts should focus on whether the employee suffered harm relating to employment conditions, without imposing an additional requirement that the harm be significant or substantial.

The Third Circuit’s Application in McCrorey

Applying Muldrow, the Third Circuit concluded that the district court had evaluated McCrorey’s claim under an improperly heightened standard.

The court reasoned that allegations involving diminished prestige, reduced overtime opportunities, and fewer prospects for advancement could constitute the type of employment-related harm contemplated by Muldrow. Because the district court had required a more substantial showing of harm, the Third Circuit vacated the summary judgment ruling and remanded the case for further proceedings.

The court did not determine that McCrorey had proven age discrimination. Rather, it held that his allegations warranted evaluation under the proper legal standard. As of the date of this article, no publicly reported decision has resolved the claim on remand.

What Does McCrorey Mean for Employers?

The significance of McCrorey is not that transfers, reassignments, and changes in job duties have suddenly become actionable. Courts have long recognized that employment decisions affecting the terms and conditions of employment can support discrimination claims under appropriate circumstances.

Rather, McCrorey illustrates how the Third Circuit applied Muldrow’s framework when evaluating whether a plaintiff alleged an adverse employment action. Employers may face greater difficulty obtaining dismissal or summary judgment based solely on the argument that the employee did not suffer a significant employment disadvantage.

Under the heightened standards applied by many courts prior to Muldrow, employers frequently argued that a challenged action did not satisfy the adverse-action requirement because it did not involve a demotion, reduction in compensation, loss of benefits, or other substantial employment consequences. Muldrow instructs courts not to impose that heightened threshold. Instead, the inquiry focuses on whether the employee suffered harm with respect to a term, condition, or privilege of employment.

As a result, employers may find it more difficult to obtain dismissal or summary judgment based solely on the argument that the challenged action did not involve a reduction in pay, benefits, title, or other traditionally significant employment consequences.

Practical Considerations for Employers

Although McCrorey does not prohibit transfers, reassignments, restructuring decisions, or other routine personnel actions, it underscores the importance of documenting the legitimate business reasons supporting those decisions.

Employers should consider:

• Clearly documenting the business rationale for transfers, reassignments, and organizational changes;
• Evaluating whether employment decisions may affect an employee’s responsibilities, opportunities, or working conditions;
• Applying personnel decisions consistently across similarly situated employees;
• Training supervisors regarding appropriate documentation and decision-making practices; and
• Consulting employment counsel when implementing significant workplace changes that may disproportionately affect particular employees or groups.

Employers should also recognize that maintaining an employee’s pay and title may not, standing alone, resolve the adverse-action analysis.

The Bottom Line

McCrorey serves as an important reminder that courts evaluating discrimination claims will focus on whether an employee experienced harm to a term, condition, or privilege of employment, rather than whether the employee can demonstrate a significant employment disadvantage.

For employers, the decision is less about identifying new categories of actionable conduct and more about recognizing that traditional threshold defenses based on the absence of pay reduction, demotion, or similar consequence may carry less weight than they have in the past. Careful documentation, consistent decision-making, and well-supported business justifications remain critical tools for defending employment decisions.

Special thanks to Sydney Klein for her contributions to the article during her summer internship with Metz Lewis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.