Employment Law Update: Fourth Circuit Decision Highlights the Impact of Supreme Court’s Change to Adverse Employment Action Standard
Date: August 28, 2025
By:
David M. Stevens
The Supreme Court’s decision in Muldrow set the stage for an increase in claims arising out of circumstances in which an employee experiences a change in their working conditions that does not rise to the level of a pay cut, demotion or termination, for example. The effects of the Supreme Court’s decision were highlighted in a decision issued this month by the Fourth Circuit, which encompasses federal courts in Maryland, Virginia, West Virginia, North Carolina, and South Carolina.
Herkert v. Bisignano involved an employee of the Social Security Administration who had requested authorization to telework as a form of accommodation for a disability. Although the request was initially denied, after the plaintiff informed her supervisors of her intention to pursue an equal employment opportunity complaint, she was transferred to another position in which she would be able to telework as she had requested. The transfer resulted in the plaintiff moving from the position of branch chief to that of management analyst. The transfer did not involve any loss of pay or benefits but did result in the plaintiff no longer having supervisory responsibilities.
The plaintiff subsequently filed an EEOC charge and then a lawsuit in the U.S. District Court for the District of Maryland. The court granted summary judgment for the employer, finding that the plaintiff’s transfer did not constitute a sufficiently significant change in her employment to qualify as an adverse employment action capable of supporting a claim.
The plaintiff filed an appeal with the Fourth Circuit. The appellate court analyzed the case under Muldrow and explained that it was no longer necessary for an employee to show a “significant detrimental effect” from an employer’s action in order to sustain a claim, but only that he or she experienced “some disadvantageous change in an employment term or condition.” Applying that standard to the facts before it, the Fourth Circuit concluded that the plaintiff’s loss of her supervisory responsibilities (even in the absence of a loss of pay or benefits) was a potentially disadvantageous change that required the case to be remanded for further consideration of her claim. In doing so, the court declined to hold that a loss of supervisory responsibilities would always be deemed to constitute an adverse employment action, instead holding that such issues would need to be resolved on a case-by-case basis.
The Fourth Circuit’s decision highlights the need for employers to account for the Supreme Court’s holding in Muldrow when implementing position transfers for employees, particularly when the transfer is being made in response to a request for an accommodation of a disability. Employers should scrutinize whether the transfer could be disadvantageous to the employee somehow (such as by reducing future opportunities or reducing the employee’s responsibilities or supervisory authority). A transfer that does not result in a financial loss to the employee will not operate to fully protect the employer against a potential claim.
Employers are welcome to reach out to Whiteford’s Labor and Employment Law attorneys with any questions or for assistance with compliance.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.