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Adverse Employment Actions
This article will discuss what it means to say “Adverse Employment Action.”
Depending on the stage of your legal problem, and depending on the requirements of the laws involved, your rights are generally strongest if the employer has taken an “Adverse Employment Action” against you. If an Adverse Employment Action has already occurred, then, generally speaking, you have a complete legal harm. If the legal harm is “complete” then you may be ready to sue (except for those laws that require you to get permission from a government agency first or take certain out of court steps first (just one example being the law of Discrimination where you usually need a “right to sue” letter).
If no Adverse Employment Action has occurred yet, you may still have lots of legal rights, though. Often, you must make a Proper and Effective Complaint to begin the process of protecting your legal rights. It gets very complicated very fast, and a mistake early in the process can undermine your legal rights later on. Consider seeing a lawyer if you are being mistreated on the job, and let the lawyer strategize with you about how best to protect your rights.
WARNING: If you are being mistreated at work and you suspect the mistreatment might be unlawful, you could harm your potential case if you FAIL to take steps to protect your rights, even if the mistreatment is not bad enough yet to constitute an Adverse Employment Action.
TAKE NOTE: An Adverse Employment Action (or mistreatment) does not necessarily give you legal rights – it depends on WHY the adverse action occurred. To answer the question as to WHY, lawyers look at the law of Discrimination, Retaliation, Wrongful Termination, Employee Rights, Employment Contract Law, etc, etc, etc . . .
NOTE: The new Retaliation adverse action standard was announced by the Supreme Court June 22, 2006 in the Burlington Northern v. White case. We don’t know yet exactly what the new standard means. The meaning will be developed slowly by courts as they decide cases. The Retaliation standard is designed to ask the jury a question: [to paraphrase] “Jury, do you think the Acts of Retaliation were bad enough to risk scaring a reasonable employee away from filing a complaint or giving a supporting statement?” See also my article about the White case and the new Adverse Action standard for Retaliation cases.
See the case of Alagna v. Smithville R-II School District (Case #02-3057, 8th Circuit, April 3, 2003 – PDF file opens in new window). In Alagna, the trial court threw out the case on “summary judgment” and there was not a trial (see The Sorry State of our Employment Protections for a discussion of what summary judgment means). On appeal, the 8th Circuit affirmed, finding that the alleged sexual harassment was not so severe as to cause a reasonable person to quit her job (Alagna had quit her job and was using a Constructive Discharge argument to show that she lost her job due to sex harassment). When the Court rejected Alagna’s constructive discharge argument, this means that the Court found that no “adverse employment action” occurred that the law would recognize.
The key concept here is that the mistreatment or other action has to be significant enough so that a judge would agree with your perception that you are being mistreated to such an extent that your legal rights are implicated. It is an unfortunate fact that many employees make mountains out of molehills, erroneously perceiving a conspiracy against them and taking great and unreasonable offense to fairly minor things. The courts look for such over-reactions, and the courts often decide that the things that happened are just not significant enough to have violated your rights.
Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)
Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.
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