The Potential Impact Of Muldrow On Quid Pro Quo Sexual Harassment Claims

Litigation can often hinge on which legal standard a plaintiff must satisfy – one imposing a relatively low threshold or one setting a more stringent bar. When a new standard is announced in one context, it can frequently be unclear whether that standard applies beyond the particular factual situation of the case in which the standard was articulated.

This article examines a recent instance of such uncertainty. Specifically, it considers whether the standard declared by the U.S. Supreme Court last year in Muldrow v. City of St. Louis, 601 U.S. 346 (2024) – holding that Title VII does not require that an adverse employment action, in the case of an involuntary job transfer, meet any heightened standard of "materiality" or "significance" in order to support a discrimination claim – also applies to Title VII cases involving quid pro quo sexual harassment.

Only a few court decisions have addressed this issue so far, and perfect clarity on the matter may take considerable time to achieve. But it seems inevitable that questions will increasingly arise as to whether and how Muldrow will impact judges' thinking in the quid pro quo context.

Two Backgrounds: Muldrow's Standard & Quid Pro Quo Claims

In Muldrow, a police officer claimed that she had been discriminated against under Title VII on the basis of her sex when she was forced to laterally transfer from a field position to a less-prestigious, administrative position, with fewer supervisory duties and less visibility, even though her rank, pay, and benefits all remained the same after the transfer. On summary judgment, the district court dismissed plaintiff's claims, finding that she had not met the Eighth Circuit's requirement that an adverse employment action involve a "significant" change in working conditions causing a "material employment disadvantage." The Eighth Circuit affirmed.

The Supreme Court, however, disagreed, ruling that to support a Title VII discrimination claim, the plaintiff transferee needed to show only "some injury respecting her employment terms or conditions." The plaintiff did not have to demonstrate, as at least some federal courts had previously required, a heightened threshold of injury resulting from the transfer, e.g., a "materially significant disadvantage" or a "serious" harm or "substantial" disadvantage. All that was needed was a showing that the transfer brought about some "disadvantageous" change in her employment terms or conditions.

Quid pro quo harassment is another form of sex discrimination claims that can be brought under Title VII. As many courts have similarly held, in order to establish a quid pro quo case, a plaintiff must demonstrate that "either (1) he/she submitted to sexual advances based on the quid pro quo offer or threat or (2) a harasser took tangible employment action based on refusal to submit to his/her sexual advances or demands." Purnell v. City of Philadelphia, 2021 WL 3617161, at *2 (E.D. Pa. Aug. 16, 2021); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (holding that sexual harassment is actionable under a quid pro quo theory where "a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands").

In a quid pro quo case where the victim refused to acquiesce to unwelcome sexual harassment, what counts as a "tangible employment action"? The U.S. Supreme Court, in considering an employer's vicarious liability for supervisor harassment, has stated that "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); see also id. at 753-54 ("When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII."). And in distinguishing between tangible and non-tangible adverse actions, Ellerth referred to cases indicating that the latter category should include reassignment to a more inconvenient job or a demotion without change in pay, benefits, duties, or prestige. Id. at 762.

The Supreme Court's central reasoning in Ellerth for strict employer liability in the case of tangible employment actions was that the "tangible employment decision" made by a supervisor requires an official company act, providing sufficient legal basis for considering the supervisor's action, for purposes of Title VII liability, to be an act of the employer. Id. at 762. Ellerth further established that, when no tangible employment action is taken, the employer can raise an affirmative defense to liability by establishing "(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Id. at 765.

Judicial Evaluations of Muldrow's Effect on Quid Pro Quo Claims

As of the date of this article, very few court decisions have considered the impact, if any, of Muldrow on the law of quid pro quo sexual harassment. The key issue here would appear to be the relationship between Muldrow's standard and what qualifies as a "tangible employment action."

In Xiao v. SLM Corp., 2024 WL 3898682 (D. Del. Aug. 22, 2024), the defendant moved to dismiss a quid pro quo claim for failure to allege an adverse employment action, where the plaintiff claimed that her supervisor threatened to deny her any promotion for objecting to his sexual advances. The court acknowledged that Muldrow had effectively overruled Third Circuit precedent holding generally that an adverse employment action is one "serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment." Jones v. Se. Pa. Transp. Auth., 796 F.3d 323 (3d Cir. 2015). But without deciding the issue as of yet (it appears), the Xiao court directed the parties to meet and confer as to whether, "under the new standard in Muldrow," the plaintiff had sufficiently alleged an adverse employment action consistent with that standard.

In Walters v. Shintech, Inc., 2025 WL 918450 (M.D. La. Mar. 26, 2025), the court evaluated whether defendants' refusal to move plaintiff to a day shift – which all parties conceded was a preferred shift among employees – constituted a tangible employment action for purposes of her quid pro quo claim. Although defendants cited older, out-of-circuit cases suggesting that refusal to transfer an employee does not constitute a tangible employment action, the Walters court concluded that Muldrow (and more recent Fifth Circuit cases) established that plaintiff "has adequately shown that the failure to transfer her to the day shift was an injury respecting the terms or conditions of her employment."

And in another case from the Third Circuit, O'Reilly v. Institute for Cancer Research, 2025 WL 2808916 (E.D. Pa. Oct. 2, 2025), the court specifically considered whether to apply Muldrow to quid pro quo claims. The court noted that it had not identified any cases from within the Third Circuit applying Muldrow's "some harm" standard to such claims, but it concluded that, "given the Third Circuit's historical application of the 'tangible employment action' standard announced in Ellerth in both quid pro quo sexual harassment and other Title VII sex discrimination cases, it appears likely that the Third Circuit may apply the Muldrow standard in the context of quid pro quo sexual harassment." Id. at *8, n.18. The court therefore reasoned that it should analyze the plaintiff's quid pro quo claims, along with defendants' argument that she had failed to establish a tangible employment action, "using both the higher Ellerth and lower Muldrow standards." Id. Ultimately, the O'Reilly court found that the plaintiff could not establish "some employment-related harm" to a term or condition of her employment, because even under Muldrow's lower bar, plaintiffs must still establish "some change to the what, where, or when of [the employee's] work," id. (internal quotation marks and citation omitted), and because the mere alleged impact of defendants' denial of her request for a letter of grant support was too speculative, under the circumstances of her case, to qualify as such a change.

Notably, at least one post-Muldrow quid pro quo case from within the Second Circuit has continued to include language that might arguably be contestable under the standard set forth in Muldrow. See Rolley v. Mod. Disposal Servs., Inc., 2024 WL 3819410, at *3 (W.D.N.Y. Aug. 14, 2024) (referring to a previous court's description of a "tangible employment action" as requiring "a significant change in employment status" (emphasis added)).

Takeaways

The extent to which Muldrow impacts the adjudication of quid pro quo sexual harassment claims, particularly in federal circuits where Muldrow effectively abrogates prior applicable standards, still very much remains to be seen.

It is possible that some courts will resist extending Muldrow's scope to quid pro quo cases, including because, the argument might go, the Supreme Court has already carefully considered what types of employment actions are necessary, in the sexual harassment context, in order to hold an employer automatically liable for the conduct of a supervising employee.

But other courts might conclude that Muldrow speaks more generally about what qualifies as an adverse action with respect to the terms or conditions of employment. The argument might be that, although the Supreme Court has now determined that Title VII discrimination harms need not be "significant" in the transferee context, there is no strong distinguishing reason why a plaintiff's refusal to submit to sexual advances should be actionable on a strict liability basis only if the supervisor used that rejection as the basis for decisions significantly affecting the tangible terms or conditions of employment. Muldrow, the argument might go, would therefore warrant an expansion of the types of possible employment actions that Ellerth expressly described as sufficiently tangible. (On the other hand, there might be an argument that Ellerth already covers the type of action discussed in Muldrow, since Ellerth itself expressly refers to "reassignment with significantly different responsibilities" as a qualifying, "significant change in employment status.")

In light of this currently prevailing uncertainty, litigants in the quid pro quo context should aim to be especially careful, creative, and flexible in evaluating their claims and defenses.

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.