From "Significant Change" to "Some Harm": Muldrow Redefines ADA Adverse Action in Tenth Circuit's Scheer Ruling

Background

When Bethany Scheer refused to sign a counseling compliance form, her employer, Sisters of Charity of Leavenworth Health System (SCL), terminated her employment. A federal judge dismissed her ADA claim under the long-standing Tenth Circuit “significant change” standard, which required proof of a major alteration in Plaintiff’s employment status. On appeal, however, the Tenth Circuit revived the case in the wake of the Supreme Court’s 2024 Muldrow v. City of St. Louis decision, which replaced that rule with a lower “some harm” threshold. The ruling signals a significant shift in the Tenth Circuit, where employment decisions once outside the scope of adverse action are now subject to closer scrutiny.

Bethany Scheer worked for SCL from 2014 to 2019, primarily handling billing and claims. While her duties remained consistent, her record included multiple corrective actions for failing to meet productivity standards. In August 2019, as supervisors were preparing a performance improvement plan (PIP) to address these concerns, co-workers reported worries about her mental well-being. In response, SCL revised the PIP to require her participation in its Employee Assistance Program (EAP) for counseling.

Scheer initially agreed to the PIP but refused to sign the EAP’s disclosure form, which would have authorized confirmation of her attendance and compliance. SCL terminated her for that refusal. She then sued under the ADA Amendments Act and the Rehabilitation Act, alleging she was fired based on a perceived mental disability. The district court granted summary judgment for SCL, applying then-binding Tenth Circuit precedent from Sanchez v. Denver Public Schools, 164 F.3d 527 (10th Cir. 1998), which followed the “significant change” standard for adverse employment actions. That standard would soon be upended by the Supreme Court’s decision in Muldrow.

The Muldrow Shift

After the district court granted summary judgment, the U.S. Supreme Court issued its decision in Muldrow v. City of St. Louis, 601 U.S. 346 (2024). In Muldrow, the Supreme Court rejected the heightened requirement of “significant,” “material,” or “serious” harm used by many circuit courts, including the Tenth Circuit. The Supreme Court held that an employment action is adverse if the plaintiff experienced “some harm respecting an identifiable term or condition of employment,” meaning the action must leave the employee worse off, but “need not have left her significantly so.”

Although Muldrow arose under Title VII, the Tenth Circuit now joins other circuits in holding that the “some harm” standard applies equally to ADA and Rehabilitation Act claims, given the nearly identical statutory language.

The Court’s Decision

Applying the Muldrow standard, the Tenth Circuit vacated the district court’s summary judgment and remanded for further proceedings. The Court concluded that Scheer is no longer required to show a significant change in employment status. Instead, the district court must now decide whether the counseling requirement and termination caused any harm to the terms, conditions, or privileges of her employment.

Broader Impact

The Scheer ruling underscores Muldrow’s significant expansion of what may be considered an adverse employment action. Under the new “some harm” standard, employment decisions that previously might not have met the “significant change” threshold, such as mandatory counseling, certain reassignments, or other changes to job conditions, may now be actionable if they cause any job-related harm.

For employers, this broadens the range of personnel decisions that could face ADA or Rehabilitation Act challenges. Actions once viewed as low risk may warrant closer review, even if they do not affect pay, title, or core duties. This includes requirements tied to wellness programs, EAP participation, and performance management plans.