What is an “Adverse Employment Action?”

Mar 8, 2018
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So you have been treated unfairly or subjected to retaliatory treatment at work. You are ready to take action and stand up for yourself, and sue your employer. Unfortunately, this alone may not be enough to bring a claim for discrimination or retaliation against an employer under the California Fair Employment and Housing Act (“FEHA”). Most FEHA claims require that an employee has been subjected to something called an “adverse employment action.”

The most obvious examples of an adverse employment action include termination, demotion, or even a refusal to be hired. But what about a scenario where you have not been terminated or demoted? For example, maybe you have experienced one of the following events at work:

  •  Loss of job responsibilities or duties;
  •  Transfer to a different location requiring additional travel;
  •  Denial of promotional opportunities; or
  •  Negative performance reviews affecting your ability to qualify for a raise or bonus.

Depending on the additional circumstances surrounding the event, it may be possible that you have been subjected to an “adverse employment action.” Ultimately, the question comes down to whether your employer has taken an action, or engaged in a course or pattern of conduct that, taken as a whole, “materially and adversely affected the terms, conditions, or privileges” of your employment.1 This is obviously not a cut-and- dry analysis, and one that requires evaluation by an experienced employment attorney who is familiar with this particular area of the law.

Even if you have been subjected to an adverse employment action, there is still more to consider when determining whether or not you have a viable claim for discrimination or retaliation or against your employer. For example, a plaintiff bringing a discrimination claim under the FEHA would have to prove the following elements:

1. The defendant was an entity covered by the FEHA (i.e. an employer with 5 or more employees);
2. The plaintiff was an employee of the defendant (or a job applicant) as opposed to an independent contractor, for example;
3. The defendant subjected the plaintiff to an adverse employment action, such as termination, demotion, or some other event that materially and adversely affected the terms and conditions of the plaintiff’s employment;
4. Plaintiff’s protected status [i.e. gender, race, age, disability, etc.] was a substantial motivating reason for defendant’s decision to subject the plaintiff to an adverse employment action;
5. The plaintiff was harmed; and
6. The defendant’s conduct was a substantial factor in causing the plaintiff’s harm.2

As illustrated from the list above, in addition to experiencing an “adverse employment action,” a plaintiff bringing a cause of action for discrimination under the FEHA must also be able to show that the “substantial motivating reason” for that employment action was because of the plaintiff’s gender, race, age, disability, or some other protected status. This of course, is not always easy, because most employers do not openly state, “I am firing you because you are disabled” (just as one example). Instead, an employer may attempt to rely on negative performance reviews that were previously issued, trumped up accusations of wrongdoing, or they may not even provide any reason at all.

If you believe you have been discriminated or retaliated against at work, it is always a good idea to consult with an experienced employment attorney who can listen to your story, ask you the right questions, and advise you of your rights. Our employment team at Potter Handy, LLP is here to help.


1CACI Jury Instructions 2509.
2CACI Jury Instructions 2500.

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