Adverse Employment Action

What Acts might be bad enough to justify a claim for damages?

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 . . .

What are Adverse Employment Actions? - The standards differ depending on whether you are claiming “Discrimination” or “Retaliation”.

In a Discrimination case, the court wants to see that bad things are happening to you which, taken together in total, might constitute an adverse and material change in the terms and conditions of your employment.

In a Retaliation case, the standard for determining whether an act (or acts) of retaliation might be bad enough to be actionable is as follows: “the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” ——- What does THAT mean?

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.

Some things are more likely to be considered “Adverse Employment Actions”:

• Termination from the job through being fired (see also my article on Been Fired? Steps to consider)
• Termination from the job due to false layoff, where you were selected for “layoff” or “downsizing”, but they didn’t really have to let you go - they chose to let you go. Maybe your job duties live on. Maybe of several people, only you got selected for layoff, and you don’t understand why. Maybe you know the layoff story is bogus. It’s complicated, but possible, to prove a false layoff.
• Termination due to QUITTING (sometimes), especially where you can meet the standards for Constructive Discharge
• Demotion
• Pay cut
• Dramatic reduction in work hours
• Transfer to a jobsite that is very hard to get to or very far away, unreasonable transfer to a job that is clearly undesirable from a job that was clearly much more desirable
• Unreasonable denial of some significant employment benefit.
• TAKE NOTE: An “adverse employment action” 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 . . .

But other bad things may or may not be “Adverse Employment Actions” (depending on other facts):

• Ongoing general mistreatment, without direct discriminatory comments. (See my articles on Harassment generally and Hostile Work Environment for more info about the legal implications of mistreatment)
• Being written up for things that others are not written up for sounds bad, and may be bad enough, but it might depend on the extent of the writeups, and it might depend on the consequences of the writeups, and it might depend on what else is also happening.
• Being placed on probation might or might not be bad enough.
• Being “Pipped” (Performance Improvement Plan or PIP) might or might not be bad enough
• Obviously overly-nit-picky criticisms of your work might or might not be bad enough.
• Job transfers might be undesirable to you, but might not be provably so undesirable as to cause a judge to agree that an adverse action has occurred.
• TAKE NOTE: You might have powerful legal rights even though the mistreatment is not severe yet - all facts count. How much OTHER mistreatment has occurred? In addition to all of the usual employment doctrines, lawyers will take a close look at the law of Constructive Discharge - when the employer is trying to make you quit. It all gets very complicated, and every fact could be relevant to the analysis.

Here’s an example case arising under sexual harassment law, where the Plaintiff lost in large part because no “adverse employment action” was deemed to have occurred (This case was prior to the 2006 new standard, but is probably still good law)

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.

Courts watch for employees’ over-reactions to minor problems

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.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Website (see the directory of lawyers).