From “Significant Harm” to “Any Disadvantage”:
Fourth-Circuit Adoption of Muldrow’s Adverse-Action Standard in Herkert v. Bisignano

1. Introduction

Mary Frances Herkert, a disabled employee of the Social Security Administration (SSA), sought a scheduled telework arrangement as a reasonable accommodation. When the accommodation was allegedly denied and she announced her intent to pursue EEO remedies, SSA management reassigned her from a supervisory “Branch Chief” position to a non-supervisory “Management Analyst” post. Although her pay and grade remained the same, she lost supervisory duties and, in her words, “prestige, interest, and advancement prospects.” The district court granted summary judgment for the Commissioner, holding that the reassignment was not an “adverse employment action” because it produced no significant change in employment status and, in any event, was voluntary.

After that ruling, the U.S. Supreme Court decided Muldrow v. City of St. Louis, 601 U.S. 346 (2024), rejecting any requirement that a plaintiff show significant harm from a transfer to establish discrimination under Title VII. Applying Muldrow, the Fourth Circuit in the present appeal vacated the district court’s judgment, holding that:

• Under the Rehabilitation Act (incorporating ADA and Title VII standards) a plaintiff need show only some disadvantageous change—not a significant one—to satisfy the adverse-action element of a discrimination claim.
• Genuine disputes of fact existed as to whether the transfer was “voluntary,” precluding summary judgment on both discrimination and retaliation claims.
• The finding of “no adverse action” also tainted the district court’s analysis of the reasonable-accommodation claim, requiring remand.

2. Summary of the Judgment

• The Fourth Circuit (Harris, J.) vacated summary judgment for the Commissioner and remanded.
• It expressly adopted Muldrow’s “any disadvantage” test for adverse actions under the Rehabilitation Act/ADA.
• The panel held that loss of supervisory authority, reduced prestige, or curtailed advancement potential could suffice, and that a jury must decide whether those disadvantages occurred.
• The court further held that whether Herkert “voluntarily” accepted the transfer was a triable fact, because SSA allegedly presented her with a fait accompli and only a choice among two demotions.
• Because the district court’s reasonable-accommodation ruling hinged on voluntariness and lack of adversity, that claim also had to be reconsidered.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Muldrow v. City of St. Louis, 601 U.S. 346 (2024) – Supreme Court rejected a “heightened threshold of harm” for transfers under Title VII; plaintiff need only show some disadvantageous change. The Fourth Circuit extends that reading to Rehabilitation-Act discrimination claims.
• James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371 (4th Cir. 2004) – Former circuit precedent requiring a significant change; expressly abrogated by Muldrow and therefore abandoned in this decision.
• Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) – Defined “materially adverse” actions for retaliation; court clarifies this standard remains intact post-Muldrow.
• Laird v. Fairfax County, 978 F.3d 887 (4th Cir. 2020) – Held that a voluntary employee-requested transfer is not adverse; distinguished here because the voluntariness of Herkert’s reassignment is genuinely disputed.
• Wirtes v. City of Newport News, 996 F.3d 234 (4th Cir. 2021) – Warns that unilateral involuntary transfers of disabled employees can undermine accommodation claims; cited to show why voluntariness matters.
• Additional citations: Reyazuddin v. Montgomery County, 789 F.3d 407 (4th Cir. 2015); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Celotex and McDonnell Douglas frameworks for summary judgment and burden-shifting.

3.2 The Court’s Legal Reasoning

1. Correct Standard for Adverse Employment Action (Discrimination).
   The panel adopted Muldrow’s text-centric reading of Title VII and, by ADA incorporation, the Rehabilitation Act: the statute speaks only of discriminate against with respect to terms, conditions, or privileges of employment, not significant harms.
   Therefore, any non-trivial disadvantage—such as loss of supervisory duties or diminished advancement prospects—can satisfy the element. Whether the disadvantage actually existed is a factual question left to the jury.
2. Retention of the “Materially Adverse” Test (Retaliation).
   Because the anti-retaliation provision serves a different function—to protect access to remedies—the Supreme Court’s earlier Burlington Northern standard endures.
   The Fourth Circuit found the district court failed to analyze whether the transfer might dissuade a reasonable worker; on the current record it could.
3. Voluntariness Inquiry.
   Drawing on Laird and Wirtes, the panel observed that an employer cannot sanitize a demotion by forcing an employee to choose between two demotions. Herkert’s evidence—notice of transfer only after decision, no option to retain original job—creates a triable dispute. Summary judgment was therefore improper.
4. Spill-over to Reasonable-Accommodation Claim.
   The district court’s accommodation analysis presumed that the transfer was mutually agreeable and benign. Because both presumptions are now unsettled, the Fourth Circuit vacated that portion as well for reconsideration (including whether reassignment was necessary, effective, and provided meaningful equal employment opportunity).

3.3 Likely Impact of the Decision

• Lower Threshold for Plaintiffs. Employees in the Fourth Circuit alleging discriminatory transfers under the Rehabilitation Act, ADA, or Title VII no longer need prove significant or substantial harm—showing any genuine disadvantage is enough to reach a jury.
• Alignment with Supreme Court Authority. The opinion brings Fourth-Circuit doctrine in line with Muldrow, removing intra-circuit tension and foreshadowing similar adjustments in other circuits that still cite now-overruled precedent.
• Scrutiny of “Voluntary” Transfers. The court signals that voluntariness is fact-intensive; employers cannot rely on perfunctory acceptance e-mails where the underlying choice was constrained.
• Re-evaluation of Accommodation Strategies. Agencies and employers must ensure that reassignment offered as accommodation is truly voluntary, effective, and not itself retaliatory; otherwise, it risks liability on multiple theories.
• Litigation Strategy. Defense motions for summary judgment that hinge on absence of “significant harm” will face steeper odds; plaintiffs will focus discovery on qualitative aspects—loss of prestige, supervisory scope, or developmental opportunities.

4. Complex Concepts Simplified

• Adverse Employment Action (Discrimination). Any unfavorable change in the terms, conditions, or privileges of employment, even if pay and grade stay constant.
• Materially Adverse Action (Retaliation). Employer conduct serious enough that it could dissuade a reasonable worker from engaging in protected activity (e.g., filing an EEO complaint).
• Rehabilitation Act & ADA Relationship. For federal employees, the Rehabilitation Act incorporates the ADA’s standards; courts routinely borrow Title VII principles because of parallel language and purpose.
• Reasonable Accommodation. An adjustment or modification enabling a qualified employee with a disability to perform essential job functions—unless it imposes undue hardship on the employer.
• McDonnell Douglas Framework. The three-step burden-shifting procedure for indirect discrimination/retaliation claims (prima facie case; employer’s legitimate reason; plaintiff’s showing of pretext).
• Voluntary Transfer. A change in job placement initiated or freely accepted by the employee; if coerced or presented as the only option, it may be deemed involuntary and potentially adverse.

5. Conclusion

Herkert v. Bisignano marks a doctrinal turning point in the Fourth Circuit. By adopting Muldrow’s “any disadvantage” test, the court dismantles the prior “significant harm” barrier and amplifies employees’ ability to litigate discriminatory transfers under federal disability and employment statutes. Equally important, the opinion clarifies that voluntariness is a nuanced factual issue, and that purported accommodations obtained through coercive reassignment can backfire on employers. Going forward, litigants should expect more cases to survive summary judgment, with juries weighing the practical realities of job transfers and accommodations rather than courts pre-screening them under an elevated significance threshold.