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Supreme Court Changes Definition of “Adverse Employment Action”

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In many employment discrimination cases including cases that allege retaliation and whistleblowing, the issue isn’t whether the employee was harassed or made to feel insignificant in some way. Instead, the issue is whether the employee actually had something bad happen to him or her at work—often called adverse employment actions.

What is an Adverse Employment Action?

Adverse employment actions can include firing or the failure to hire, but they can also include doing other things that suggest discrimination. Some common (but less recognized) examples include:

  • Giving favorable assignments to some employees, but not to minority or protected class employees
  • Giving excess workloads to minority employees
  • Not giving training or career advancement opportunities to protected class employees
  • Not giving bonuses or other non-salary benefits, to protected class employees
  • Disciplining protected class employees consistently than others receive discipline

A Lower Bar

But a recent case, that made it all the way to the United States Supreme Court, asked a new question: is it discrimination if the employer changes the employees job, but that job change carries no change in salary or status? That is, is a job change itself enough to constitute an adverse employment action? Or must that change have a material, tangible, and economic detriment to the employee, for the employee to be able to sue for discrimination?

Supreme Court Makes it Easier to Sue

For many years, the answer to this question was yes; the employee had to suffer some tangible economic harm, to have a valid employment discrimination claim.

But a recent Supreme Court case has now changed this. The Supreme Court recently ruled that all an employee needs to show to demonstrate that there has been an adverse employment action, is some change in any term or condition of the employee’s employment. The employee does not even need to show that the change or alteration was significant or serious.

Conversely (and somewhat confusingly), the court also went on to say that simply a transfer of a job or a job title or position, is not evidence of discrimination. All the Plaintiff needs to show is as a result of the adverse action, he or she is worse off, but the employee doesn’t have to show how much worse off he or she is.

In plain language: the employee needs to show harm but doesn’t need to show any particular level of harm.

Damages are Still Relevant

Of course, the level of harm or financial detriment suffered by the employee does still go to the extent of damages and injury in an employment discrimination case. But nominal, small, or insignificant damages are apparently now enough to survive a summary judgment or motion to dismiss, and minor or nominal damages are not a substantive defense to employment discrimination cases they way that they once were.

Employers need to be wary of how things like job transfers or changes in job titles may look, now that these alterations in employment can now be actionable by employees.

Call the West Palm Beach business litigation attorneys at Pike & Lustig today, to understand your rights as an employee or employer.




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