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What constitutes an adverse employment action?

When you are a California employee, your employer must provide you with a safe and healthy workplace free from various types of discrimination. One of the things your employer cannot do is take any action against you that inhibits your right, or the rights of your co-workers, to report discrimination to supervisors and/or the Equal Employment Opportunity Commission. The EEOC considers any such action your employer takes either before or after you make a discrimination complaint as an adverse employment action

Adverse employment actions can take many forms, but some of the most common ones are the following:

  • Terminating your employment
  • Taking away your supervisory responsibilities
  • Threatening you with an unfavorable work reassignment and/or a lowering of your salary or wages
  • Threatening you or a member of your family with an immigration action such as deportation
  • Overly scrutinizing, analyzing or examining your work
  • Belittling you in the media

Supreme Court decisions

The U.S. Supreme Court has heard many discrimination cases over the decades. One of the most important was that of Burlington Northern & Santa Fe Railway Co. v. White in 2006. In that case the Justices held that “adverse employment action” is an objective standard, but whether or not the standard applies in any given situation depends on the facts and circumstances of each plaintiff’s case. In other words, the action your employer allegedly took against you only rises to the level of an adverse employment action if the facts you establish at trial amounted to retaliation or negatively impacted your likelihood of reporting other discriminatory workplace behavior in the future.

In various Supreme Court cases, the Justices determined that all of the following can constitute an adverse employment action under the proper circumstances:

  • Putting you under surveillance while at work
  • Sending you to an unfavorable location
  • Excluding you from lunches attended by other members of your team
  • Assigning you more work than co-workers having the same job description and/or pay grade as yours
  • Sabotaging and/or undermining your work
  • Subjecting you to abusive scheduling practices

While this information is not legal advice, it can help you understand adverse employment actions and the types of things for which you should remain vigilant.

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