Wednesday, September 28, 2011

What is an "adverse action?"

If you are an employment discrimination victim or a whistleblower who suffered retaliation at the hands of your employer, to have an opportunity to recover you must show you suffered an “adverse action.” Some things that feel adverse to you are not necessarily “adverse actions” that will give rise to a case. On the other hand, an employer is wrong if it tells you that only a termination or a demotion is an “adverse action.”

If you were terminated, laid off, demoted, or in some other way lost pay as a result of the employer’s discriminatory or retaliatory action against you, then you suffered an adverse action. See, e.g., Guz v. Bechtel Nat'l Inc., 24 Cal.AppAth 317, 355 (“termination, demotion, or denial of an available job " is adverse action); Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511 (termination of employment and demotion are adverse actions); McRae v. Dep't of Corrections and Rehab. (2006) 142 Cal.AppAth 377, 393 (action that results in a reduction in pay satisfies requirement); Little v. Windermere Relocation, Inc. (9th Cir. 2002) 301 F.3d 958, 970 (pay cut is adverse employment action).

This is true even if the employer subsequently took some action to mitigate its damages. For example, in a case on which Bryan Schwartz Law recently defeated an employer’s summary judgment motion, the employer argued that, because our client was hired into another position after she was initially laid off, she did not suffer an adverse action. The employer’s argument failed. If you suffered a materially adverse consequence – even if it is relatively small, based on some type of mitigation – this should be sufficient to constitute an adverse action.

Likewise, if you are placed in a position with less advancement potential, fewer promotion opportunities, a less distinguished title, or suffered some other material loss of benefits or significantly diminished material responsibilities, you may have suffered an adverse action. See, e.g., Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2416 (2006)(reassignment to less desirable job responsibilities may be materially adverse action); Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389-1390 (lateral transfer without change in wages, benefits and duties may be an adverse employment action where the transfer is in reality a demotion, or there are significantly diminished material responsibilities); Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1456-1457 (diminished promotion opportunities is adverse action).

A hostile working environment can constitute an “adverse action.” It is also true, though, that “social slights” or “mere reduction in pleasantries” are not enough, usually, to constitute an adverse action, standing alone – though they may be important background evidence of discriminatory or retaliatory animus. On the other hand, both California and Federal courts will look at the totality of circumstances to determine whether the work environment or your job has been sufficiently for an adverse action to be established. See Yanowitz v. L 'Oreal USA, Inc.
(2005) 36 Ca1.4th 1028, 1055 ("no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries”).

The Federal standard to prove that a retaliatory adverse action occurred is easier to meet than the California standard, as articulated in Yanowitz. In Federal courts, you may be able to prove an adverse action if you can show that the employer took any action against you which might tend to discourage a reasonable person from engaging in protected activity. See Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000). The Ray decision suggests that, if your former employer where you previously complained of discrimination or blew the whistle retaliates by giving a negative job reference to a different potential employer (even if you ultimately get the job you were seeking), this can be an adverse action, because it might tend to discourage people from speaking out against discrimination or other unlawful activities. Id. at 1242.

If you believe you may have been subjected to an adverse employment action based on discrimination or whistleblower retaliation, and want to speak to a lawyer, contact today.