In order to prevail on a claim of employment discrimination or retaliation, one of the elements a plaintiff must prove is that she/he was subject to an “adverse employment action.” In cases involving termination of employment, there is generally no dispute that the employee was subject to a “materially adverse change in the terms and conditions of employment.”[1] However, not all employment discrimination claims allege termination. Nor is discharge from employment the only recognized “adverse employment action.”[2]

An adverse employment action is “[a] tangible employment action [that] constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”[3] The adverse action need not result in pecuniary loss, but must materially affect the terms and conditions of the plaintiff's employment. [4]

The definition of an adverse employment action set forth Kocsis/Burlington Industries is not exhaustive. In fact, due the remedial nature of the laws under which most suits are brought (e.g., Title VII, ADEA, ADA), the term is liberally construed. The courts have recognized a number of adverse employment actions that satisfy the requisite element of a prima facie case of discrimination or retaliation.

An “adverse employment action” may also include:

·      significantly diminished material responsibilities[5]

·      demotions evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits[6]

·      disciplinary action in the form of a written warning in certain situations[7] or a formal reprimand[8]

·      non-selection for a vacant position[9]

·      reassignment with significantly different responsibilities[10]

·      a decision causing a significant change in benefits[11]

·      failure to renew a contract[12]

·      constructive discharge[13]

·      differential treatment in the compensation of similarly situated employees during sick leave[14]

·      exclusion from meetings that directly affect the employee’s ability to perform her job[15]

·      providing a negative reference to a potential employer[16]

·      “or other indices that might be unique to a particular situation.”[17]

Despite the seemingly open-ended list of events that may constitute an adverse employment action, courts generally look beyond the action itself and examine its consequences. Most decisions emphasize that the result of an alleged action must be significant or material before it will be considered actionable.

In White v. Burlington Northern & Santa Fe Railway Co., No. 00-6780 (6^th Cir. 2004), the Court emphasized that “[e]mployment actions that are de minimis are not actionable under Title VII. . . A mere inconvenience or an alteration of job responsibilities or a bruised ego is not enough to constitute an adverse employment action.” (Internal citations omitted). They must rise above trivial workplace dissatisfactions.[18]

Among the actions that courts have found to be not adverse include the following:

·      job reassignments without salary or work hour changes do not ordinarily constitute adverse employment action[19]

·      lowered performance ratings without reduced pay[20]

·      a verbal reprimand absent evidence that it is anything more than mere criticism[21]

·      negative statements in an employee’s personnel file that do not result in an adverse action

·      temporary actions (e.g., suspension) that do not result in a loss of income[22]

·      annoyances or inconveniences to the employee

·      requiring an employee to work at home following outpatient surgery[23]

·      rejecting computer expenses that previously had been approved[24]

·      Transferring an employee whose pay, benefits, title and job duties remain the same but new position is in another county so employee will have to travel an additional 20 minutes to get to work[25]

It is important to remember that proving an adverse employment action is only one hurdle a plaintiff must overcome to support his claim. Claims for retaliation and discrimination brought under Title VII and ADEA are analyzed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden-shifting framework. The analysis requires a plaintiff first to establish a prima facie case of discrimination. To establish a prima facie case, a plaintiff must show (1) that [s]he is a member of a protected group, (2) that [s]he was subject to an adverse employment decision, (3) that [s]he was qualified for the position, and (4) that [s]he was replaced by a person outside of the protected class. In disparate treatment cases, the fourth element may be replaced with the requirement that the plaintiff show she was treated differently from similarly-situated individuals.[26]

Once the plaintiff establishes a prima facie case, the burden shifts to the employer to set forth a non-discriminatory reason for the action. If the employer does so, the burden then shifts back to the plaintiff to demonstrate, by a preponderance of the evidence, that the legitimate, non-discriminatory reason was merely a pretext for discrimination.

The principal lesson the decisions of the courts teach is that employers must make sure that employment decisions and actions follow a consistently applied policy of non-discrimination and no retaliation.