What Counts as an “Adverse Employment Action?”

No employee is perfect, and it is not uncommon, even for the best employees, to occasionally fall short of their standards and suffer consequences. But those consequences must be based on the employee’s job performance rather than motivated by a desire to punish the employee for an improper reason, such as discrimination. Employers may also take adverse employment actions against employees as a way to retaliate against them. If you believe you have suffered an adverse action due to retaliation, a Norfolk employment lawyer can defend your interests. 

Why It Matters

Retaliation against employees is prohibited by a variety of federal and commonwealth laws, including most anti-discrimination laws. However, very few employers are explicit in their intentions to retaliate against employees. Just because an adverse employment action occurs after an employee engages in a protected activity does not necessarily mean that the action was motivated by the employee’s behavior. There must be a causal connection between the protected activity and the adverse employment action.

Defining “Adverse Employment Action” 

The Supreme Court has held that, to prevail on a claim of retaliation, the plaintiff must show that a reasonable employee would have found the challenged action to be materially adverse. The Court further elaborated that a materially adverse action is one that is more than “normally petty slights, minor annoyances, and simple lack of good manners.” Rather, the action must dissuade a reasonable worker from making or supporting a charge of discrimination (or engaging in any other protected activity).

Such actions generally involve changes to the terms and conditions of employment. Commonly cited examples of actions that could constitute prohibit adverse employment actions include: 

• Termination or demotion
• Reduction in salary or benefits
• Reassignment to a less desirable position 
• Increased scrutiny of the employee’s job duties 
• Changing the employee’s work schedule to conflict with other responsibilities 
• Threatening the employee, such as by threatening to report them to the police
• Giving the employee a lower performance evaluation than is warranted 
• Refusing to promote the employee

Of course, whether a particular action is materially adverse is a fact-specific inquiry that depends greatly on the circumstances of the case. 

Protected Activities for Which Retaliation Is Prohibited 

Generally, employers are prohibited from retaliating against employees after they engage in any protected activity. In many cases the protected activity is reporting violations of anti-discrimination laws to the Equal Employment Opportunity Commission, as the same laws that prohibit discrimination also prohibit retaliating against employees who pursue legal claims for employment discrimination. Other protected activities include reporting criminal activity or regulatory violations, refusing to participate in criminal activity, filing a claim for workers’ compensation, participating in a workplace investigation, testifying against an employer in a judicial or administrative proceeding, and requesting or taking a leave of absence under the Family and Medical Leave Act, among others. 

Protect Your Rights With Assistance From a Norfolk Employment Lawyer

If you believe that you have been unlawfully retaliated against, you should speak to an attorney who can help you determine whether your rights were violated. To get started, please contact a Norfolk employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.