When SSA Disability Meets Employment Discrimination

Background: Who Is Herkert and What Happened

• Mary Frances Herkert, a GS-13 Branch Chief at the Social Security Administration (SSA) with medical limitations, had long relied on ad hoc telework accommodations.

• In spring 2017, she requested a more formal, scheduled telework arrangement, even offering to file a formal accommodation request. In response, instead of formalizing her arrangement, the SSA reassigned her to a non-supervisory Management Analyst role—maintaining the same GS level but stripping her of supervisory responsibilities.

• Herkert filed suit alleging disability discrimination, retaliation, and failure to reasonably accommodate under the Rehabilitation Act. The district court granted summary judgment to SSA, treating her reassignment as voluntary and non-adverse since pay and grade were unchanged.

• The Fourth Circuit reversed and remanded on August 14, 2025, concluding that genuine disputes exist on whether the reassignment was truly voluntary and materially adverse—especially under the newly clarified standard from Muldrow 

  
  

Legal Framework: Muldrow v. City of St. Louis (U.S. Supreme Court, April 17, 2024)

• In Muldrow, the Supreme Court rejected the requirement that plaintiffs must show a “materially significant disadvantage” to establish an adverse employment action under Title VII. Instead, *plaintiffs need only demonstrate some harm to the terms or conditions of employment.

• This lowers the bar significantly—lateral transfers where pay and title remain the same may still be actionable if they result in some disadvantageous change (e.g., loss of prestige, perqs, or supervision)

• The Fourth Circuit applied this “some harm” standard to Herkert’s case, concluding that the district court erred as a matter of law in requiring “significant” change.

  
  

Fourth Circuit’s Takeaways in Herkert

1. Discrimination: Under Muldrow, removing the “significant” requirement means Herkert’s reassignment—even with unchanged pay and grade—may be disadvantageous if it cost her supervisory authority, prestige, or career trajectory.

2. Retaliation: Still evaluated under Burlington Northern, meaning the action must be “materially adverse”—capable of deterring a reasonable worker. The Fourth Circuit found that a jury could reasonably find such deterring harm here.

3. Voluntariness: The notion that Herkert “voluntarily” accepted the position is undermined if she had no real choice or if that choice was coerced. The Fourth Circuit held that fact disputes remain about whether the reassignment was truly voluntary.

   
   

Why It Matters

For Plaintiffs:

• Don’t treat lateral moves as harmless: Document loss of intangible job aspects (e.g., supervisory control, prestige, career opportunities).

• Preserve contemporaneous evidence: Emails, meeting notes, alternatives offered, witness names—all can demonstrate whether reassignment was coerced or pre-decided.

• Frame harm broadly: Emotional toll, reputational damage, and stripped authority can all qualify as “some harm.”

  
  

For Defendants:

• Keep detailed timelines: Document when accommodations were discussed, when reassignment decisions were made, and the decision-making rationale.

• Show real choice: If voluntariness is your defense, your records must reflect genuine, uncoerced decision-making—not a prepackaged outcome.

• Highlight legitimate business reasons: Contextualize reassignment—not just “policy,” but why it was fair, reasonable, and necessary.

  
  

Herkert makes it clear: coerced lateral reassignments carry weight, even if they keep pay and grade constant. The Fourth Circuit’s use of Muldrow underscores that intangible harms—like loss of supervisory authority—are real and actionable.

The defense must show voluntary and fair processes, while plaintiffs should meticulously document not just what changed, but how and why it hurt them.

Got any questions? Schedule a consultation with us. I’m here to help. It’s a lot to take in, but we’ll get through it together. After all, navigating these waters is always easier when you’ve got someone to chat with.