From “Significant Change” to “Some Harm”: The Tenth Circuit’s Adoption of the Muldrow Standard in Scheer v. Sisters of Charity

1. Introduction

Case: Bethany Scheer v. Sisters of Charity of Leavenworth Health System, Inc. (10th Cir. July 21 2025)

After being required to sign a release authorizing disclosure of her participation in mandatory counseling, Bethany Scheer refused and was fired by her employer, Sisters of Charity of Leavenworth Health System (“SCL”). Scheer alleged discrimination under the Americans with Disabilities Act Amendments Act (“ADAAA”) and the Rehabilitation Act, claiming that SCL perceived her as mentally disabled and imposed unlawful conditions of employment.

The district court granted summary judgment to SCL, holding that the mandatory counseling referral was not an “adverse employment action” because it did not cause a “significant change” in Scheer’s employment status—a long-standing Tenth Circuit requirement taken from Sanchez v. Denver Public Schools (1998). However, after the district court’s decision, the U.S. Supreme Court issued Muldrow v. City of St. Louis (2024), replacing the “significant change” threshold with a more plaintiff-friendly “some harm” standard. On appeal, the Tenth Circuit vacated the summary judgment and remanded, instructing the district court to apply the new test.

The decision is the Tenth Circuit’s first published opinion explicitly extending Muldrow beyond Title VII to ADA and Rehabilitation Act claims, reshaping the concept of “adverse employment action” within the circuit.

2. Summary of the Judgment

• The court vacated the district court’s grant of summary judgment to SCL.
• It held that Muldrow abrogated the Tenth Circuit’s earlier “significant change” test originating in Sanchez.
• Under Muldrow, an employment action is adverse if the employee experiences “some harm respecting an identifiable term or condition of employment,” even if the harm is not significant.
• The panel remanded for the district court to determine—under this lighter burden—whether Scheer suffered some harm due to SCL’s mandatory counseling referral and related termination.
• The court invited, but did not require, supplemental briefing on the implications of Muldrow.

3. Analysis

a. Precedents Cited and Their Influence

Sanchez & Burlington. For over 25 years, Tenth Circuit discrimination jurisprudence borrowed from Burlington to require a “significant change in employment status” for an action to be adverse. This high bar routinely disposed of claims—like Scheer’s—involving PIPs, transfers, counseling referrals, or administrative directives.

Muldrow’s Watershed Shift. The Supreme Court in 2024 held that Title VII plaintiffs need only show some harm relating to a term or condition of employment. Importantly, the Court expressly rejected “significant,” “material,” or “serious” qualifiers adopted by several circuits, including the Tenth.

Exby-Stolley’s Foundation. Even before Muldrow, an en banc Tenth Circuit acknowledged that ADA language mirrors Title VII’s “terms, conditions, or privileges of employment,” foreshadowing seamless transplantation of future Title VII standards into ADA claims.

Applying the Chain. Once Muldrow dismantled the “significance” requirement, Sanchez was implicitly abrogated. The Tenth Circuit in Scheer became the first to state this expressly and extend Muldrow to ADA and Rehabilitation Act cases, aligning itself with emerging First, Fifth, Sixth, and Eleventh Circuit precedent.

b. The Court’s Legal Reasoning

1. Recognition of Controlling Authority. The panel noted that the district court “dutifully followed” binding circuit precedent (Sanchez). Once Muldrow was decided, however, that precedent could no longer control.
2. Textual Parity. Citing Exby-Stolley, the court observed that ADA and Title VII share virtually identical statutory language regarding employment terms and conditions, making importation of Muldrow logically unavoidable.
3. Lower Bar for Plaintiffs. The court emphasized Muldrow’s articulation that the harm “must have left [the employee] worse off, but need not have left her significantly so.” By shifting from a quantitative (materiality) to a qualitative (any cognizable) assessment, the panel ensured Scheer’s claim would be re-evaluated under a more lenient yardstick.
4. Procedural Prudence. Rather than deciding the “some harm” question itself, the appellate court remanded, respecting the district court’s role as fact-finder and allowing supplemental submissions.

c. Potential Impact of the Judgment

This opinion is modest in length but momentous in consequence:

• Lower Litigation Threshold. ADA and Rehabilitation Act plaintiffs in the Tenth Circuit now need only demonstrate some harm, broadening viable claims. PIPs, counseling mandates, intra-department transfers, schedule changes, or medical information releases—previously dismissed as non-adverse—may now reach juries.
• Employer Policy Re-Evaluation. HR departments should reassess EAP referral protocols, performance plans, and confidentiality waivers. Mandating mental-health counseling combined with disclosure requirements could constitute adverse action if perceived as punitive or stigmatizing.
• Uniformity Across Statutes. By explicitly applying Muldrow outside Title VII, the Tenth Circuit paves the way for the “some harm” metric to govern ADEA, FMLA retaliation, and Section 1981 cases premised on identical statutory language.
• Strategic Litigation Posture. Plaintiffs can argue that even subtle harms—e.g., coerced disclosure of medical data, reputational damage, or psychological distress tied to employment terms—satisfy the adverse-action element. Conversely, defendants must prepare evidentiary showings that any such actions caused no cognizable harm.
• Data-Privacy Implications. The requirement that an employee sign a release granting the employer information about therapy attendance raises privacy concerns. In post-Scheer litigation, compelled medical or psychological disclosures may independently fulfill the “some harm” criterion.

4. Complex Concepts Simplified

5. Conclusion

Scheer v. Sisters of Charity signals a pivotal recalibration in discrimination jurisprudence within the Tenth Circuit. By discarding the “significant change” threshold in favor of the Supreme Court’s “some harm” standard, the court amplifies employee protections under the ADA and Rehabilitation Act. Employers must tread carefully when imposing conditions—especially those touching on medical or psychological matters—lest they invite liability under this broadened definition of adverse action. Future cases will flesh out the outer contours of “some harm,” but the message is clear: even modest detriments can now suffice to open the courthouse doors.

Prepared by: (Your Name), Esq. | Date: (Insert Date)