Law Office of Jeffrey D. Fulton

What is an adverse employment action?

As a California employee, you have many rights and protections under Title VII of the U.S. Code. One body of rights applies not only to your right to challenge workplace discrimination by reporting it to your employer or notifying the Equal Employment Opportunity Commission, but also your right to suffer no retaliation or reprisal from your employer if and when you do.

One of the things your employer cannot do is take any action that could deter you or any other reasonable person from exercising your protected right to report workplace discrimination. As the EEOC explains, an adverse employment action is one your employer takes against you that punishes you for your discrimination challenge or materially affects your likelihood of reporting similar discrimination in the future. Examples of adverse employment actions include the following:

  • Relieving you of your supervisory responsibilities
  • Threatening you with a work reassignment and/or a decrease in wages
  • Threatening you or a family member with deportation or other immigration actions if you are a foreign-born worker
  • Terminating your employment
  • Overly scrutinizing your work
  • Disparaging you in the media

Supreme Court decisions

In the 2006 U.S. Supreme Court case of Burlington Northern & Santa Fe Railway Co. v. White, the Justices held that while “adverse employment action” is an objective standard, determining if, when, where and how it occurs is fact-dependent on the circumstances surrounding the alleged incident. What may be a material adverse employment action in one situation may not be in another. In this and subsequent cases, the Justices set forth examples of material adverse employment actions such as the following:

  • Surveilling you while at work
  • Excluding you from team lunches
  • Sabotaging your work
  • Reassigning you to an unfavorable location
  • Engaging in abusive scheduling practices against you
  • Assigning you a disproportionate workload in comparison to others in your same job description and/or pay grade

This is general information only and not intended to provide legal advice.

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