“Adverse Employment Action” – How is it defined?

An adverse employment action is a change in the terms and conditions of your job that puts you in a worse position. It includes anything from termination to something that reduces your benefits, lowers your rank or decreases your chances of a promotion. Trivial workplace slights do not suffice.

You generally have to show that you suffered an adverse employment action in order to prove a claim of employment discrimination or retaliation.

What is an adverse employment action under Title VII?

Title VII of the Civil Rights Act of 1964¹ is the main federal employment law. It forbids discrimination in the workplace. It also forbids retaliation for making a claim of discrimination or invoking your other rights. However, according to the Supreme Court, the law uses different definitions of an adverse employment action for these 2 types of cases.²

Because Title VII is a federal law, it applies across the country.

Discrimination

In order for an employer’s conduct to be discriminatory under Title VII, it must lead to an adverse employment action. The focus for these cases is on whether you lost opportunities in the workplace.

Under Title VII, an adverse employment action is a materially adverse change in the terms of your employment.³ Some examples include:

• discharge,
• getting laid off,
• demotion,
• a reduction in salary or benefits,
• failing or refusing to promote you, or
• taking back a job offer.

Not all workplace setbacks amount to an adverse employment action under Title VII. Some examples of setbacks that do not amount to an adverse employment action include:

• assigning you unfavorable tasks that are still within your job description,⁴
• failing to nominate you for a workplace award,⁵
• sending you to counseling for poor workplace performance reviews,⁶
• adding a written reprimand to your personnel file,⁷
• stripping you of supervisory responsibilities without changing your position or compensation,⁸
• transferring you to a different city, but with the same title and salary,⁹ and
• threatening you with discipline or a transfer in the future.¹⁰

Retaliation

In order for your employer’s conduct to amount to retaliation under Title VII, it has to be a “materially adverse action.” This is a lower standard than for claims of discrimination and is easier to satisfy. The focus for this is not on your loss of workplace opportunities. Instead, it focuses on whether your employer’s conduct would have dissuaded you from making a claim of discrimination or assisting in it.¹¹

For example: Richard files a complaint of age discrimination with the Equal Employment Opportunity Commission (EEOC). His supervisor then tells Richard that the complaint raised concerns about his trustworthiness at work. Richard is then transferred to a different office location. It is a lateral transfer, so his new position has the same benefits, pay, employment status, and title. However, his job duties are far more menial. While this would not be an adverse employment action for a discrimination claim, they can amount to a materially adverse action for a retaliation claim.¹²

The reason for the lower standard is that Title VII requires an employer’s actions to affect your conditions of employment to support a charge of discrimination.¹³ However, no such language is used in the provisions that deal with retaliation.¹⁴

What is an adverse employment action under state law in California?

California state law also forbids workplace misconduct. The Fair Employment and Housing Act (FEHA) prohibits workplace discrimination and retaliation. Unlike Title VII, though, the FEHA does not use different definitions for an adverse employment action for discrimination or retaliation claims.¹⁵ Instead, an adverse employment action is always a course of conduct that, when taken as a whole, has materially and adversely affected the terms, conditions, or privileges of your employment.¹⁶

Examples of adverse employment actions under California’s FEHA include:

• wrongful termination,
• demotion,
• employer harassment,¹⁷
• putting you on administrative leave,¹⁸
• refusing to promote you,¹⁹
• unjustifiably bad performance evaluations,²⁰
• job reassignments that entail materially adverse consequences,²¹
• reducing your working hours,²²
• rescinding a promise for workplace training,²³ and
• any conduct that is reasonably likely to impair your job performance or your prospects for advancement or promotion (such as falsely claiming you are insubordinate).²⁴

According to the court of appeals, determining whether a workplace setback amounts to an adverse employment action requires taking account of all of the surrounding circumstances.²⁵

Some examples of workplace setbacks that do not amount to an adverse employment action under the FEHA include:

• an oral or written criticism against you,²⁶
• ostracism in the workplace, unless it amounts to workplace harassment or a hostile work environment,²⁷
• changes in the workplace that you do not like or that are not in your interests,²⁸
• refusing to allow you to rescind a voluntary resignation,²⁹ and
• a threat of a future adverse employment action that is never followed through on.³⁰

Such conduct is not reasonably likely to do more than anger or upset employees. It does not amount to an adverse employment action.

In what types of cases is it important?

An adverse employment action is generally an essential element to prove in 2 types of employment cases:

• discrimination, and
• retaliation.

Both of these types of cases require you to prove that you were made to suffer in the workplace for an unlawful reason.

For discrimination cases, you suffered the adverse employment action because you belonged to a protected class.

For retaliation cases, you suffered the setback because you invoked your employee’s rights or engaged in a protected activity. Some of the things that you can be retaliated against are for:

• engaging in political activity,
• making a workers’ compensation claim,
• making a claim of discrimination or assisting in one, or
• engaging in whistleblower activities.

How can I prove that I suffered one?

You can prove that you suffered an adverse employment action by showing that it significantly hurt your employment experience. This generally requires comparing your workplace experience from before the employment decision to what it became after it was made. Important differences are your:

• salary,
• hours worked,
• benefits,
• job title,
• work duties, and
• prospects for promotion.

The best way to prove that your working conditions have suffered enough is to establish an attorney-client relationship with a lawyer from a reputable law firm and get their legal advice and representation.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Need I Prove More: Why an Adverse Employment Action Prong Has No Place in a Failure to Accommodate Disability Claim – Hamline Law Review.
• An Adverse Employment Action–Not Just an Unfriendly Place to Work: Co-Worker Retaliatory Harassment under Title VII – Iowa Law Review.
• Defining Adverse Employment Action in Title VII Claims for Employer Retaliation: Determining the Most Appropriate Standard – University of Dayton Law Review.
• Adverse Employment Action – How Much Harm Must Be Shown to Sustain a Claim of Discrimination under Title VII – Mercer Law Review.
• Adverse Employment Action in Retaliation Cases – University of Baltimore Law Review.

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