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Adverse Employment Action

What is an Adverse Employment Action?

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When an employer unlawfully does something that “materially and adversely affects the terms, conditions, or privileges” of someone’s employment, it is considered an adverse employment action. There are many ways in which this can happen, the most common being demotion or termination. There are also more minor actions that may not be strictly illegal but may serve as supporting evidence of discrimination or harassment. It is important to note that the circumstances of a situation are also important when determining if an action qualifies as an adverse action.


What Does Adverse Employment Action Mean?

Adverse employment actions are often used as a form of retaliation. The goal is not only to punish the employee for exercising their rights, but also to discourage their peers from doing the same. An adverse employment action is something that negatively affects someone’s employment in a substantial way. This can mean diminishing someone’s pay, lowering their position, or switching them to more difficult work or less desirable job duties. This is why a demotion is considered an adverse employment action while a lateral transfer may not be. There needs to be a greater impact than a general change.


What Actions Constitute Adverse Employment Action?

In order for something to qualify as an adverse employment action, there needs to be evidence that an employer unlawfully took action against an employee that drastically impacted their work. The ways in which employees can be affected include their pay, their reputation, their career prospects, and their work environment.

Adverse employment actions that can affect someone’s pay include:

  • Cutting Hours
  • Demotion
  • Reducing Salary
  • Denying Bonuses
  • Unpaid Overtime
  • Lay Offs or Termination
  • Denying or Rescinding Benefits

Adverse employment actions that can affect someone’s job standing include:

  • Demotion
  • Negative Performance Reviews
  • Less Desirable Assignments
  • Being excluded from Projects

Adverse employment actions that can affect someone’s career prospects include:

  • Refusing to Hire
  • Refusing to Train
  • Refusing to Promote
  • Blacklisting
  • Sabotage

Adverse employment actions that can affect someone’s work environment include:

  • Physical or Verbal Harassment
  • More Difficult Assignments
  • Excessive Workload
  • Denying Assistance
  • Denying Accommodations
  • Denying Breaks


Most Common Adverse Employment Action Examples

There are many actions that an employer may take against an employee that can be considered adverse employment actions in certain circumstances including but not limited to:

Administrative Leave – An extended absence from work. This is not officially a disciplinary action and may or may not include pay and benefits depending on the employer.

Assignment Changes – Being given the worst job duties, additional work, or more difficult work. This can also involve people who work for commissions being given less lucrative opportunities.

Demotion – Being changed to a lower ranking position. This generally involves a decrease in pay, benefits, prestige, and opportunities.

Denying Accommodations – Removing or refusing to provide reasonable disability accommodations or denying time off for religious holiday observance.

Denying Benefits – Refusing to provide an employee with perks or benefits that other employees are given, denying FMLA leave, or not providing legally mandated sick leave.

Denying Opportunities – Refusing to provide additional training, denying promotions when the employee is the most qualified, blacklisting, and excluding employees from projects and events.

Hostile Work Environment – Creating workplace conditions that are so intolerable that the employee is unable to do their job. This can involve physical or verbal harassment, excessive micromanaging, or sabotaging someone’s work.

Negative Reviews – When an employee is given a bad performance review or a negative job reference that is unwarranted. This can be due to the employer falsifying information, or the employee being sabotaged or set up to fail. This can result in suspension, demotions, termination, and being denied pay raises, promotions, or other employment.

Pay cuts – Reducing someone’s pay rate or cutting their salary. This can also involve lowering their commission, taking away bonuses, and cutting their hours.

Schedule Changes – Cutting hours, changing a full-time employee to part time, scheduling someone to work on days they had requested off, or changing an employee from morning shift to evening shift.

Suspension – An extended absence from work. This is a disciplinary action and may or may not include pay and benefits depending on the employer.

Termination – Ending a worker’s employment by firing or layoffs. Some employers also commit what is known as constructive termination, which is when they create working conditions that are so intolerable that the employee has no choice but to quit. This can involve creating a hostile work environment or actions that substantially reduce their income.

Transfers – Moving someone to a different department or location. This can be an adverse employment action if it involves being given less desirable or more difficult work, demotion, a pay cut, less lucrative opportunities, or an unreasonably lengthened commute.


Why Are There Different Ideas of What Adverse Employment Action Means?

Some types of adverse employment action are more direct and obvious than others. People can generally agree that things like termination and suspension fall under that definition. However, some things might fall into more of a grey area. Schedule changes and denied promotions might be harder to argue. The courts make decisions about what constitutes an adverse employment action on a case by case basis. The details of each situation help make that determination. An employer might argue that their actions were justified for some valid reason or another. There are many factors to consider and examine closely, such as the severity of the action and its impact on the employee, the presence of discrimination or harassment, or the employee engaging in a protected activity right before the action occurred such as filing a complaint or requesting leave.


Conduct That May Not Constitute Adverse Employment Action

Severity and impact are important when defining an adverse employment action. Things that are an inconvenience or an annoyance may not qualify. If an employee is transferred to a different department with no change in pay, schedule, or workload, the employee may be upset but they have not been tangibly harmed. On their own, negative performance reviews and being put on a performance improvement plan do not necessarily count as adverse employment actions. However, if they are used as a tool to facilitate more severe actions such as demotions or termination, they may be taken into consideration. Schedule changes such as being switched from afternoon shifts to graveyard can reasonably be argued to be an adverse employment action. However, minor changes or denial of minor changes are not often deemed substantial enough. Though once again, the context of the situation may significantly alter the decision. If an employee is scheduled to come in at noon every day and their employer starts scheduling them to come in at ten every day, it may seem like a minor inconvenience. However, if the employee has a chronic illness and their original schedule was to accommodate regular doctor’s appointments, there is more tangible harm being done.


Legal Standard for Proving Employment Discrimination and Whistleblower Retaliation

There are some factors that are necessary in order to prove that an adverse employment action was motivated by discrimination:

  • The employee must be part of a protected class
  • The employee’s job performance met legitimate expectations
  • The employee was treated differently from their coworkers

The employer may argue that the adverse employment action was motivated by a reason other than discrimination, and it is the responsibility of the employee to prove otherwise.

The factors necessary to prove that an adverse employment action was motivated by retaliation are:

  • The employee participated in a protected activity
  • The employer was aware of the employee’s participation
  • Participating in the protected activity contributed to the adverse employment action

In order to defend against a retaliation charge, the employer must prove that the adverse employment action would have been taken regardless of the protected activity.


Title VII Employment Discrimination Cases

In 1964, the Civil Rights Act was enacted. Title VII of this act forbids employers from making employment decisions on the basis of protected categories such as race, religion, and sex. While the term adverse employment action is not used, it does specify that discrimination must not play a part in the employee’s “compensation, terms, conditions, or privileges of employment.” Courts have interpreted the spirit of the law to prohibit adverse employment actions motivated by discrimination. The Equal Employment Opportunity Commission, or EEOC, is the agency in charge of enforcing Title VII of the Civil Rights Act and has listed “denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge” as the main examples of adverse employment actions. However, they also acknowledge things such as negative performance reviews and job transfers. Some federal courts have determined that the action must have materially adverse consequences. They believe that only major employment actions should be considered such as refusal to hire, compensation, and termination.


Key Considerations to Remember When Proving Adverse Employment Action

In order for an employee to prove that they have been discriminated against or retaliated against, they must prove that their employer made an adverse employment action against them. This can be complicated due to the varied use and application of the term. It is important to remember that the definition of adverse employment action encompasses more for retaliation claims than it does for discrimination. The term also does not appear in the letter of the law and so the definition is generally interpreted by individual courts. In some retaliation cases, adverse employment actions suffered by previous employees may also be taken into account.


Contact Mesriani Law Group If You Have Been Subject to an Adverse Employment Action

Both federal and California state laws protect employees from discrimination, harassment, and retaliation in the workplace. An employee can not be demoted, suspended, or terminated due to being part of a protected class or as retaliation for engaging in a protected activity. Unfortunately, employers will still try to take adverse action against their employees even when legally prohibited. When this happens, the employee has the right to file a claim against them. There are many steps to take and time frames in which those steps must be taken. It can be overwhelming for anyone, especially when added to the stress of the ordeal itself. An employment lawyer can help navigate the process and alleviate that stress. Our attorneys are experienced, hardworking, and dedicated to getting our clients the compensation they deserve. If you have faced adverse employment action from your employer, call Mesriani Law Group today for a free consultation.


Adverse Employment Action FAQs

What is an adverse action taken by an employer against an employee?

When an employer does something that has a material negative impact on a worker’s employment, it is considered an adverse employment action. This is commonly seen in pay or hour cuts, suspensions, and terminations. While some believe that the action should be severe and directly cause some tangible harm to the employee in order to qualify, the Equal Employment Opportunity Commission tends to apply a more general application to encompass many different types of negative actions that an employer might take against their employees. More minor or subtle actions may be taken into account if they are consistent and pervasive.

Is adverse action illegal?

There are many legitimate reasons why an employer may take actions that have a negative impact on their employees. If an employee breaks company policy or does not perform the essential functions of their job to reasonable standards, then their employer has every right to demote or terminate them. However, adverse employment actions are often seen when an employer is retaliating against an employee for things such as going on medical leave or making a complaint against their employer. This type of retaliation is a violation of federal and California state law. Employers are prohibited from taking adverse action against employees as punishment for engaging in protected activities or as a way to deter others from doing so.

What is the adverse action process?

When an employer wants to take an adverse action against their employee or a prospective employee due to information obtained from a background check report, there are steps they must follow. First, they must provide them with a pre-adverse action letter including a copy of the background check results and the employee’s rights. Then there is a waiting period in which they must allow the employee to dispute the report. Last, the employer must provide a final adverse action letter.

What is an example of materially adverse action?

Jane applies for a promotion at her job that will give her a higher pay rate and more benefits. She is the most qualified of all the applicants, but she is denied the promotion because her manager does not believe that women should be in leadership positions. When she informs him that this is illegal, he suspends her for insubordination. Jane files a complaint with her human resources department. When her manager finds out that she filed a complaint, he starts scheduling her for half as many hours as she had been working before. Jane then finds out that she is pregnant. A week after she puts in her maternity leave request, her pay rate is lowered. After Jane goes out on her leave, she is notified that she is being laid off. Jane has been the victim of illegal adverse employment actions.

About the Author
Picture of Rodney Mesriani
Rodney Mesriani

Rodney Mesriani is the principal partner of the Los Angeles and Santa Monica based Mesriani Law Group. He specializes in personal injury and employment law while also being an accomplished litigator and trial attorney. Rodney is an aggressive negotiator and a well-known and respected attorney in the areas of practice he specializes in.

He earned his Bachelor of Science degree in Accounting from California State University Northridge before attending Southwestern School of Law where he received his Juris Doctorate. While being an accomplished personal injury and employment lawyer, Rodney Mesriani has made it a point to attend numerous State Sponsored MCLE events and seminars over the years as a law practitioner to be informed of the latest laws and litigation strategies.



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