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What Is an Adverse Employment Action?
(Examples & How to Prove It)

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C.L. Mike Schmidt Published by C.L. Mike Schmidt
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In order to make a claim for employment discrimination, it is necessary to demonstrate that the discriminatory behavior negatively impacted your job status, known as an “adverse employment action.” 

This precise terminology can be found in both federal and state regulations, as well as in legal precedents that deal with employment discrimination complaints. However, what does an adverse employment action mean?

As an experienced attorney in this field, I can explain what adverse employment actions are and the legal consequences associated with them.

Quick Summary

  • An adverse employment action is a series of actions that have significantly, materially, and adversely affected the job’s terms, conditions, or benefits.
  • Your legal rights may depend on whether your employer has taken an adverse employment action against you.
  • A tangible adverse action in a discrimination claim is defined as significant changes in employment status and is generally viewed as unfavorable in retaliation cases.

What Is An Adverse Employment Action?

A lawyer explaining Adverse Employment ActionAn adverse employment action is any action taken by your employer that significantly and negatively impacts your job’s terms, conditions, or privileges. 

The Supreme Court has clearly defined adverse employment action in retaliation involving a ” reasonable employee” subject to materially adverse actions.

However, a federal law, Title VII, prohibits workplace discrimination and retaliation if an employee claims discrimination or asserts their other rights [1].

It is important to note that the law has different definitions of an adverse employment decision depending on the type of case.

The Fair Employment and Housing Act (FEHA) also prohibits discrimination and retaliation in the workplace.

However, unlike Title VII, the FEHA does not have separate definitions for discrimination and retaliation claims regarding an adverse employment action.

Examples Of An Adverse Employment Action

An office worker looking at a clipboard

Here are other examples of an adverse employment action:

  • Lateral transfer of a reasonable worker to a less-desirable position
  • Changing an employee’s work shifts
  • Increasing the level of supervision or surveillance over an employee
  • Undermining an employee’s work
  • Giving one employee significantly more work than others in the same job position
  • Reassignments that contain materially adverse consequences

Discrimination And Retaliation

An office worker experiencing discriminationSuppose your employer has taken adverse employment actions against you or created a hostile work environment.

In that case, you may sue them for discrimination or retaliation under federal laws such as Title VII of the Council of California Civil Jury Instructions or state laws.

However, it is usually easier to provide evidence for tangible actions. Tangible actions are defined as significant changes in status and are generally viewed as unfavorable in retaliation cases.

Examples of materially adverse action include:

  • Non-selection
  • Firing
  • Failure to promote
  • Demotion
  • Suspension
  • Undesirable reassignment
  • Denial of a leave request

In certain retaliation cases, harassment can qualify as adverse employment action. This can involve actions that hinder your job performance, limit opportunities for promotions or salary increases, or cause significant emotional distress due to repeated occurrences of harassment.

If you are a federal employee and want to report unlawful discrimination or retaliation, you must speak with a counselor within 45 days of the action. 

For private-sector employees and others, filing a charge with the U.S. Equal Employment Opportunity Commission within 180 days may be necessary.

Different deadlines may apply for state and local government employees.

Federal Government Employee Discipline

A lawyer explaining federal government employee discipline to a clientAs a federal employee, you must receive advance written notice of the proposed action, the reasons for the action, and your rights.

You also have the right to review any evidence the agency considered in proposing the action.

You can respond to the notice in writing, orally, or both. As a federal employee, you can also appeal with the U.S.

Merit Systems Protection Board (MSPB) for specific adverse actions [2]. 

Whistleblower Retaliation

The Whistleblower Protection Act (WPA) covers “personnel actions,” which are actions taken by your employer or actions that they have failed or threatened to take as a form of retaliation against you for making a protected disclosure or participating in another protected activity [3].

If you have experienced any such actions, you may be eligible to file a retaliation claim under the WPA. 

Related ArticleExamples of Workplace Retaliation

How Do You Prove Retaliation?

A lawyer looking at paperwork

You prove retaliation by collecting evidence that illustrates how discrimination and retaliation have substantially affected your job duties.

To determine how your work experience has changed since the decision, consider factors such as:

  • Compensation,
  • Working Hours,
  • Job Benefits.
  • Title of Your Job,
  • Work Responsibilities,
  • Working Conditions,
  • Prospects for Promotion.

In some cases, an employer can take an adverse employment action and claim it was due to poor performance; this may then be retaliatory. An employment lawyer is essential to help demonstrate that this was the case and not a legitimate reason for the action.

“To establish a prima facie case of employment discrimination based on intentional discrimination, an employee must show that they are a member of a protected class.”
Eric Bachman, Litigator at Bachman Law

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FAQs

How Can A Whistleblower Prove Retaliation? 

A whistleblower can prove retaliation by providing circumstantial evidence. To prove whistleblower retaliation, you must demonstrate that the employer acted against you because you reported something or participated in another protected activity.

What Is Abusive Conduct?

Abusive conduct is the repetition of verbally abusive behavior, such as using derogatory language, insults, and epithets. It also includes any verbal or physical behavior perceived as threatening, intimidating or humiliating by a reasonable person or any deliberate attempt to disrupt or sabotage someone’ssomeone’s work performance.

What Is An Adverse Employment Action Under State Law In California?

An adverse employment action under state law in California refers to an action that has negatively impacted your employment in a significant way, specifically in terms of your job conditions, benefits, or other related factors. 

Related Article: New Labor Laws for California in 2023

Are You A Victim Of Adverse Employment Action?

You can take legal action if you think you were subjected to discrimination or retaliation at work and faced negative consequences. 

Contact Schmidt & Clark, LLP to speak with our employment lawyers in a free consultation session. They will review your case, assess whether you experienced any adverse employment action, and provide guidance on your legal rights.


References:

  1. https://www.ce9.uscourts.gov/jury-instructions/node/176#:~:text=An%20action%20is%20an%20adverse,supporting%20a%20charge%20of%20discrimination.
  2. https://www.opm.gov/policy-data-oversight/employee-relations/training/presentationmspbpolicypractice.pdf
  3. https://www.whistleblowers.gov/

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