The Lower Muldrow Standard Does Not Apply to Hostile Work Environment Claims in the Tenth Circuit

Kathryn Bennett, Associate

            In Russell v. Driscoll,[1] a case alleging sex discrimination in violation of Title VII, Paul Russell (“Russell”) argued to the Tenth Circuit Court of Appeals that following the U.S. Supreme Court’s decision in Muldrow v. City of St. Louis,[2]claims alleging a hostile work environment are no longer required to show that the harm resulting from discriminatory conduct was so “severe or pervasive” that it altered the terms, conditions, or privileges of employment. Although an internal investigation into Russell’s workplace at the Irwin Army Community Hospital at Fort Riley in Kansas concluded his supervisor had discriminated based on sex, the district court dismissed his claim because it found that the discriminatory conduct was not sufficiently severe or pervasive to meet the legal standard of an actionable hostile work environment claim. Ultimately, the Tenth Circuit declined to adopt Russell’s argument, leaving the standard in place for hostile environment claims.

The Case in Russell v. Driscoll:

            On November 5, 2025 the U.S. Court of Appeals for the Tenth Circuit dismissed Russell’s claim of a hostile work environment based on sex discrimination in violation of Title VII and in doing so addressed the applicability of the U.S. Supreme Court decision Muldrow v. City of St. Louis to hostile environment claims. Russell filed his case in 2022 after the Army’s internal investigation found Major Tamara Tran (“Maj. Tran”) discriminated against male employees, e.g., she held sex-segregated meetings, assigned men and women different books to read, and only required men to schedule appointments before she would meet with them; yet, the district court found none of Maj. Tran’s conduct rose to the level of severity or pervasiveness typically required for proving discrimination based on a hostile work environment. In light of the Supreme Court’s decision in Muldrow – which held that plaintiffs alleging discrimination based on discrete acts are not required to prove the degree of harm suffered rose above an elevated threshold – Russell argued that the district court erred by dismissing his claims under the heightened “severity and pervasiveness” standard and that Muldrow governed his claim.

            In affirming the district court’s decision, the appeals court explained why Russell’s argument was incorrect. Saliently, Russell complained of a violation of Title VII based on a hostile work environment; in contrast, the Muldrow plaintiff asserted a Title VII violation based on a discrete act of discrimination. Further, the appeals court explained that what separates a hostile work environment claim from a discrete-act discrimination complaint is that under a hostile environment theory, distinct actions may not be sufficiently harmful to impact the employee’s terms, conditions, or privileges of employment; whereas a discrete-act claim asserts that one discriminatory event was so harmful that it violated Title VII. Because not all incidents that may be described as “harassment” affect the terms and conditions of employment, the “severity and pervasiveness” standard is necessary to distinguish hostile environment claims from discrete-act claims.[3]

Circuit Split in Decisions Applying Muldrow to Hostile Environment Claims

            In Russell, the Tenth Circuit Court of Appeals concurred with the Fourth and Fifth Circuits and specifically disagreed with the Sixth Circuit’s reasoning[4] for applying Muldrow to hostile environment claims. The Sixth Circuit had decided that in the wake of Muldrow, hostile work environment claimants need not show “significant harm,” but rather, that the inquiry was simply whether the discrimination left an employee worse off with respect to the terms and conditions of employment. However, the appeals court explained that hostile work environment claims inherently allege discrimination so harmful that it alters an employee’s terms or conditions of employment; thus, the Russell Court found the Sixth Circuit’s reasoning circular and declined to follow it.

Employer Considerations Following Russell

            The Tenth Circuit in Russell expressly rejects the argument that Muldrow altered the requirements of a hostile work environment claim and clarified that Muldrow applies only to discrete-acts discrimination under Title VII. For this reason, the standard of pleading a hostile work environment claim in the Tenth Circuit remains unchanged: claimants must show that the workplace is affected by discrimination that is ““sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’”[5] Employers should remain aware of the conduct and decision-making exercised by supervisory personnel. Campbell Litigation is available to answer your questions concerning these and other developments in the landscape of labor & employment law.

[1] Russell v. Driscoll, No. 24-3187, 2025 WL 3085313 (10th Cir. Nov. 5, 2025).

[2] Muldrow v. City of St. Louis, 601 U.S. 346, 346 (2024).

[3] Russell, No. 24-3187at *1, *3.

[4] McNeal v. City of Blue Ash, Ohio, 117 F.4th 887, 904 (6th Cir. 2024).

[5] Id.  at *3 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).