On July 21, 2025, the Tenth Circuit issued an important decision, confirming that employees asserting discrimination claims under the Americans with Disabilities Act (“ADA”) need not demonstrate a “significant change” in employment status. Instead, following the U.S. Supreme Court’s recent decision in Muldrow v. City of St. Louis (“Muldrow“), the Tenth Circuit held that plaintiffs must show only “some harm” to an identifiable term or condition of employment to proceed with their claims. 

Background

Plaintiff, Bethany Scheer, worked for a health system based in the Mountain West (the “Health System”) in its Physician Billing Department from 2014 to 2019. Scheer received seven corrective actions in her first four years at the Health System, all related to missed productivity targets. Following these actions, the Health System sought to place Scheer on a performance improvement plan (“PIP”), which required her to attend mental health counseling through the company’s Employee Assistance Program (“EAP”). 

Scheer initially agreed to the PIP but later refused to sign a required release form authorizing the third-party EAP provider to disclose her participation and compliance to the Health System. Scheer was terminated the same day and sued under the ADA and the Rehabilitation Act, alleging that SCL terminated her based upon its erroneous perception that she suffers from a disability of mental illness. 

The district court granted summary judgment for the Health System, holding that Scheer had not suffered a “significant change” in her employment status—the standard then required under Tenth Circuit precedent. 

The Court’s Analysis

The Tenth Circuit reversed and remanded the original finding of summary judgment for the Health System. Relying on the Supreme Court’s decision in Muldrow, the Tenth Circuit held that Scheer needed only to show some harm affecting a term or condition of employment, a significantly different standard than the previous standard requiring a “significant” or “material” change to employment terms. Under this new standard, the Tenth Circuit concluded that Scheer’s allegations, particularly that she was terminated for refusing mental health counseling, warranted reconsideration by the district court. 

The Tenth Circuit emphasized that although the district court followed then-binding precedent, it must now reexamine the case under Muldrow’s lowered threshold for what constitutes an adverse employment action. The case was remanded for further proceedings to determine whether Scheer experienced “some harm” under the new standard. 

Practical Takeaways

  • ADA Claims Require Less to Proceed: Employers should prepare for increased litigation risk under the ADA. Adverse actions no longer need to involve a significant employment change, but only some change. 
  • Mental Health Referrals May Trigger Employer Liability: PIPs or employment conditions that include mental health counseling may give rise to ADA claims, even if well-intentioned. 
  • Review Employment Policies and Documentation: Employers should reassess policies related to EAPs, mental health referrals and disciplinary actions to ensure they abide by ADA requirements and are well-documented. 
  • Monitor Shifting Standards Across Jurisdictions: While this case applies the Supreme Court’s new “some harm” standard, courts across jurisdictions may vary in their interpretation of what rises to that level. Employers should monitor developments closely and consult legal counsel regarding the best plan of action going forward. 

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Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.

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