Document Type
Article
Publication Date
2025
Abstract
In Muldrow v. City of St. Louis, the Supreme Court held that Title VII does not require a plaintiff to establish material harm to prove employment discrimination. Instead, any action that is negative and affects a term, condition or privilege of employment is sufficient, if the employer took the action because of a protected trait.
At first glance, Muldrow appears to be a middling case focused on a technical aspect of discrimination law. This Article argues that Muldrow has the potential to be one of the most important modern discrimination cases. If taken to its natural conclusion it will force courts to answer a fundamental question: when is discrimination harmful? It also has the potential to upend the structure of disparate treatment law by unifying harassment and non-harassment disparate treatment doctrine.
The case also is critical for understanding contemporary debates about textualism. Muldrow relied on a textualist methodology. The case illustrates how textualism plays an essential role in interpreting discrimination statutes. It also illuminates textualism’s limits. This conversation about textualism’s deficits is especially salient given scholars’ recent enthusiasm for progressive textualism.
This Article reveals the theoretical and practical issues facing district and appellate courts as they contend with Muldrow. It provides the first comprehensive account of the post-Muldrow case law. It predicts decades of chaotic case law, as well as the exciting possibility that courts might finally unify discrimination harm jurisprudence.
Recommended Citation
Sandra F. Sperino,
When is Discrimination Harmful?, 103 Washington University Law Review 103
(2025).
Available at: https://scholarship.law.missouri.edu/facpubs/1333