• Justin Hein

Adverse Employment Action

What is considered an adverse employment action for retaliation purposes is not subject to a mathematically precise test and the factual context of the action is paramount.

The California Supreme Court has coined “adverse employment action” as a “term of art.”  It is generally used as a shorthand description of the kind of adverse treatment imposed upon an employee to support a cause of action under a discrimination or retaliation statute.

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if the 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 the employee's employment experience. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion.

What is Material?

The "materiality" test of adverse employment action looks to "the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career."’ The test "must be interpreted liberally with a reasonable appreciation of the realities of the workplace." As such, retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in the context of the employee, employer, and workplace.

There is no requirement that an employer’s retaliatory acts constitute one swift blow. Retaliation is not judged act-to-act. For example, the case may involve a pattern of employer harassment consisting of acts that might not individually be sufficient to constitute discrimination or retaliation, but taken as a whole establish prohibited conduct. (i.e. negative job reviews, expansion of job responsibilities, elimination of resources and support staff, refusal to promote). Or the case may involve acts that, considered alone, would not appear to be adverse, but could be adverse under the particular circumstances of the case (e.g. lateral transfer with same rate of pay, benefits, duties to a different work location or shift can be considered retaliatory).

What is Not Enough?

Minor or trivial actions or conduct that is not reasonably likely to do more than anger or

upset an employee cannot constitute an adverse employment action. A mere negative or unprofessional utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the employee's employment experience. For example, a single threat of an adverse employment action, never carried out, does not constitute an adverse employment action.

The fact that an employer makes a change impacting the employment experience that the employee does not like is not the standard of determining whether the change meets the "adverse" threshold.

What Single Instances can be Retaliatory?

California case law indicates that the following, single instance conduct can meet the material threshold:

  • Reduction in hours

  • Reduction in pay

  • Reduction in benefits

  • Reassignment

  • Failing to train

  • Failing to promote

  • Involuntary, unpaid administrative leave

Do Not Lose the Forest for the Trees

But keep in mind that these determinations are not being made in a vacuum. While the materiality and adversity experienced by the employee is important, the context of the change is paramount. If the employer is engaging in a behavior towards the employee that it believes will bar or deter the employee from engaging in a protected job activity, then that new behavior can be considered as an adverse employment action.

In Dahlia v. Rodriguez (9th Cir. 2013) 735 F.3d 1060, the Ninth Circuit held paid administrative leave could constitute an adverse employment action when considering the totality of the circumstances. In Dahlia, Burbank Police Detective John Dahlia was assigned to assist a robbery investigation.  A day after the robbery, Dahlia allegedly observed Lieutenant Omar Rodriguez grab a suspect and threaten him with a gun.  Later that evening, Dahlia claimed he heard yelling and the sound of someone being slapped in a room where a Sergeant was interviewing another suspect.  Dahlia met with a Lieutenant to disclose the abuse he witnessed and was allegedly told to “stop his sniveling.”  The Burbank Police Department’s Internal Affairs Unit initiated an investigation into the physical abuse related to the robbery.  Following Dahlia’s interview with internal affairs, the City placed Dahlia on paid administrative leave pending the determination of discipline. 

The Ninth Circuit was persuaded by Dahlia’s assertion that paid administrative leave, when considered in the context of his employment, prevented him from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience.  The Ninth Circuit held that if Dahlia could prove these effects, he could prove he suffered an adverse employment action because these effects and the general stigma from being put on administrative leave likely deter employees from engaging in protected activity. 

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