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Courts all over the map on adverse employment actions; employers should level the terrain

February 16th, 2015  |  Lorene Park

By Lorene D. Park, J.D.

Did you think that giving an employee a transfer he requested or perhaps disclosing an employee’s identity and lawsuit in SEC filings, as required by regulations, could not possibly be adverse employment actions supporting federal discrimination or retaliation claims? Think again. These and other actions deemed adverse enough to support liability may surprise you. And if recent cases are an indication, it is getting easier for employees to prove they were subject to an adverse action. That said, there are also cases where courts have ruled that actions most people would think were adverse did not qualify as such, leaving employers with no clear definition.

As to the employee transfer example, Supreme Court Justice Alito recently dissented from the majority’s refusal to review a Sixth Circuit case, Kalamazoo County Road Commission v Deleon, in which the appeals court concluded that transferring an employee to a lateral position for which he had applied was an adverse employment action for purposes of his discrimination case. The appeals court held that the key inquiry was not whether the transfer was requested but was whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.” The employee had alleged that, when he applied for the position, he would have requested a raise, because the transfer involved daily exposure to toxic diesel fuel and soot. He developed bronchitis, had frequent headaches, and occasionally blew black soot from his nostrils.

Believing that the Sixth Circuit’s decision should be reversed, Justice Alito’s January 12, 2015, dissent referred to an old maxim: “Be careful what you wish for; you might receive it.” As it stands now, he lamented, as a consequence of this “unprecedented” decision that was “clearly contrary to the statutes on which the claims are based,” in the Sixth Circuit, “employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.”

Adverse actions include more than you thought. If giving an employee something he asked for could be considered an adverse employment action, it seems reasonable to consider what other seemingly normal actions might support a discrimination or retaliation claim under federal law. It bears noting that discrimination and retaliation claims have different standards for what constitutes an adverse action. For discrimination claims, an adverse action typically involves a material change in the terms, conditions, and privileges of employment (termination, demotion, lower pay, failure to hire, etc.). Retaliation requires less: All that usually is required for a retaliation claim is that the employer took an action likely to dissuade a reasonable employee from engaging in statutorily protected activity.

As to both types of claims, recent cases suggest that courts are giving plenty of wiggle room for creative lawyering. For example, courts found triable questions on whether the following were adverse actions:

The flipside—actions surprisingly not considered materially adverse. To make things even less clear, there also are many cases in which an employment action would appear to an average person to be adverse, but not to a court.

Level the terrain. Given that litigants can be creative in what they argue constitutes an adverse employment action, and some courts are going along for the ride, employers are well advised to take a broad view as well. Just remember that, with respect to any arguably adverse action, context matters. Thus, while courts may be all over the map as to what constitutes an adverse action, employers can still level the terrain (i.e., take a consistent approach to all employees).

For example, termination is the most classic example of an adverse employment action, yet many cases arising from allegedly unlawful terminations still fail before reaching a jury because the circumstances did not suggest unlawful intent. Most often, this is because similarly situated employees who engaged in similar conduct were also terminated. With that in mind, when it comes to any change in how an employer treats an employee, in an employee’s work environment, or in his or her terms or conditions of employment, consider the following:

  • Be impartial and consistent; treat similarly situated employees in the same manner (Take a broad view of who is similarly situated. It could be those performing similar duties, working under the same supervisor, having a similar discipline history, and the like).
  • Follow your own policies and standard procedures in taking a course of action or deciding on one. If the standard practice has been to deviate from a written policy (e.g., allowing someone to work from home when the policy prohibits telecommuting), change one or the other to be consistent.
  • If making a change in a policy or prior practice, ensure that the change is fairly applied to all employees and has no connection (temporal or otherwise) to an employee’s protected activity (as was arguably the case in Greengrass).
  • Be able to justify any discipline, relocation, change in assignments, and change in the terms and conditions of employment, or other significant employment action with a legitimate business reason.
  • Document your reasons for the action.
  • If an employee complains about the action, listen to the employee’s point of view; thoroughly investigate if the employee complains of discrimination or retaliation. Be sure to provide an avenue for complaints that includes more than just a direct supervisor.
  • Train supervisors and decisionmakers on all of the foregoing.

While there is no sure-fire defense that applies in all circumstances, taking these steps could go a long way in helping avoid liability, particularly where courts appear to be broadening their view of what constitutes an adverse action supporting a federal lawsuit.