Photo Credit: What Is a Hostile Work Environment in California?, Azadian Law Group, PC, https://azadianlawgroup.com/what-is-hostile-work-environment-in-california/ (last visited Jan 4, 2026).
Authored by: Annabelle F. Holliday
Title VII of the Civil Rights Act prevents an employer from discriminating against an individual based on race, color, religion, sex, or national origin.[1] One way a plaintiff may show workplace discrimination is by proving that the discrimination has caused a hostile work environment, defined as conduct that is so severe or pervasive that it alters the conditions of employment and creates an abusive working atmosphere.[2] Recently, the Supreme Court’s decision in Muldrow v. City of St. Louis lowered the harm requirement for certain discriminatory acts.[3] Specifically, the Court held that a Title VII plaintiff challenging a job transfer need only show “some harm” or that the action made them “worse off” with respect to the terms or conditions of employment, thus unanimously rejecting the requirement that the harm be “significant” or “material.”[4] Since the Muldrow decision, courts have grappled with whether it also impacts hostile work environment claims. The Sixth Circuit in McNeal v. City of Blue Ash applied Muldrow‘s holdingto both discrete action and hostile work environment claims.[5] However, in Russell v. Driscoll, the Tenth Circuit created a circuit split by rejecting the Sixth Circuit’s approach and concluding that Muldrow does not apply to hostile work environment claims.[6]
In Russell, a civilian employee of the U.S. Army alleged that his female supervisor subjected him to gender-based discrimination that created a hostile work environment.[7] The conduct he identified included being excluded from meetings and leadership email chains, being reassigned in ways that reduced his responsibilities, and being required to follow procedural barriers not imposed on female employees.[8] After complaints of the alleged discriminated, an internal Army investigation was conducted.[9] The investigation report concluded that male employees were treated less favorably, a violation of the Army’s equal-opportunity policy.[10] The investigation also reported that the supervisor “created a hostile work environment.”[11] Moreover, the investigation denied any wrongdoing of Russell.[12] Despite these findings, the district court granted summary judgment to the employer, holding that the discrimination was not “sufficiently severe or pervasive to meet the legal standard for a hostile work environment” under Title VII.[13]
On appeal Russell relied on Muldrow, arguing that the Supreme Court’s rejection of the “significant” harm requirement should also apply to hostile work environment claims.[14] In short, Russell argued that the Muldrow decision undermined the requirement that hostile work environment claims be supported by conduct that is “severe or pervasive.”[15] However, the Tenth Circuit rejected that argument and instead drew a distinction between discrete discriminatory acts found in Muldrow and hostile work environment claims.[16] Relying on Supreme Court precedent such as Meritor Savings Bank v. Vinson, Harris v. Forklift Systems, and National Railroad Passenger Corp. v. Morgan, the court emphasized that hostile work environment claims are different from claims based on isolated employment actions because discrete acts, such as transfers or demotions, are actionable on their own, while hostile work environment claims depend on the effect of repeated conduct that affects the workplace.[17] If any workplace slight that made an employee “worse off” were sufficient, the “severe or pervasive” requirement would lose its meaning.[18] Notably, the court explained that “the Supreme Court has made clear that the severity/pervasiveness inquiry is ‘crucial’ for ‘prevent[ing] Title VII from expanding into a general civility code.’”[19] Thus, the Tenth Circuit clarified that not all unfair or unpleasant behavior, even if discriminatory, rises to the level of a hostile work environment. Instead, it must still be severe or pervasive.
The Tenth Circuit also declined to give controlling weight to the Army’s internal investigative findings.[20] While such findings may be relevant, the court made clear that an employer’s internal characterization of a workplace as “hostile” does not override the legal framework governing Title VII claims.[21] Additionally, the court asserted that Russell failed to develop a legal argument connecting those findings to the “severe or pervasive” requirement, and thus the court concluded the argument was waived for lack of development.[22] Importantly, the court recognized that the Sixth Circuit had reached a different result in McNeal, where the court implied that Muldrow applies to hostile work environment claims in the same way it applies to discrete discriminatory acts.[23] However, the Tenth Circuit expressly declined to follow that approach and asserted that it disagreed with the Sixth Circuit’s reasoning.[24] Ultimately, the court affirmed summary judgment for the employer, holding that the conduct alleged did not rise to the level required to establish a hostile work environment.[25] In doing so, the Tenth Circuit’s decision in Russell reinforces that Muldrow did not rewrite the hostile work environment doctrine. Instead, the traditional framework remains intact, and thus plaintiffs still must show that discriminatory conduct was so severe or pervasive as to alter the conditions of employment and create an abusive working atmosphere.
Finally, it is important to note that Russell is only binding within the Tenth Circuit. As a result, courts in other jurisdictions may ultimately take a different view on whether Muldrow applies to hostile work environment claims, such as the Sixth Circuit did in the McNeal decision.[26] Nonetheless, though Muldrow may expand liability for certain discrete employment actions, hostile work environment claims in many courts likely remain subject to the severe/pervasive standard rooted in Supreme Court precedent. Importantly, Russell has clear implications for trial attorneys: in hostile work environment claims, plaintiffs must show severe or pervasive conduct, while defendants should rely on that standard to challenge claims. Accordingly, the Russell decision confirms that some courts will continue to draw a meaningful line between actionable discrimination and workplace conduct that, though inappropriate or unfair, does not meet the standard of a legally hostile work environment.
[1] Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (2018).
[2] See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21‑22 (1993) (barring harassment based on race, religion, sex, or national origin).
[3] 601 U.S. 346, 355 (2024).
[4] Id. at 354, 359.
[5] 117 F.4th 887, 900 (6th Cir. 2024).
[6] Russell v. Driscoll, 157 F.4th 1348, 1353 (10th Cir. 2025).
[7] Id. at 1349.
[8] Id. at 1349-50.
[9] Id. at 1350.
[10] Id.
[11] Id. at 1353.
[12] Russell, 157 F.4th at 1353.
[13] Id.
[14] Id. at 1351.
[15] Id.
[16] Id. at 1352 (“Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct . . . over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.”).
[17] Id. at 1350-52, See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (stating that there are two major types of discrimination a plaintiff can allege: discrete discriminatory acts and hostile work environment claims); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“[T]he workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment[.]”); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (explaining that alleged conduct must be sufficiently severe or pervasive).
[18] Russell, 157 F.4th at 1352 (“[I]f Muldrow implicitly abrogated the severity/pervasiveness analysis for a hostile-environment claim (as Russell contends), then Muldrow abrogated the hostile-environment claim.”).
[19] Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).
[20] Id. at 1353.
[21] Id.
[22] Id.
[23] Russell, 157 F.4th at 1352; McNeal, 117 F.4th at 900.
[24] Russell, 157 F.4th at 1352.
[25] Id.
[26] McNeal, 117 F.4th at 900.
American Journal of Trial Advocacy 