Monday, December 24, 2012

Adverse action or not: Do you know the subtle differences ...

Sharpen your pencils and put on your thinking caps. Here?s a list of ?adverse employment actions.? Or maybe not. See if your definition of ?adverse? jibes with that of our court system. If it doesn?t, you may just be in for some adverse legal action of your own.

  1. Three senior employees had their chairs taken out from under them. Adverse or not?
  2. A female employee suffered an ankle injury, but her boss wouldn?t give her a special parking permit for four days. Adverse?
  3. Two black employees were switched out of office jobs to ditch-digger positions, with no loss of pay or benefits. Adverse?
  4. A Jamaican employee had his job title changed from project engineer to mechanical engineer. Adverse?

Definition at work

Before we give you the answers, you may have your very own question: Why do I need to know what constitutes an adverse action and what doesn?t?

When a discrimination or retaliation claim is filed, one of the factors an aggrieved employee needs to prove is that he or she suffered. Usually, that suffering comes in the form of termination, cut pay or lost benefits. But there is always other evidence that employees? lawyers toss up against the wall to see what sticks. And those are the factors juries analyze.

Take the first situation listed above. Three senior employees lodged age discrimination claims, in part based on the fact that the workstation chairs they had used for years were taken away. Key point from court: Similarly situated younger workers were allowed to continue to sit. Answer to No.1: Definitely an adverse action. (Ryan v. O?Halloran Int?l, Inc.)

Key point for you: Minor or trivial acts that make employees unhappy, bruise their egos, or inconvenience them, don?t count as adverse actions. But a tangible change that causes a material disadvantage does. And that change doesn?t have to be economic. It can, as in this case, be changed working conditions that cause physical pain or injury.

On the other hand, denial of a temporary parking permit was not materially adverse or a significant change in employ??ment conditions. Answer to No. 2: Not an adverse action.

Transfers often trigger claims

One of the main instigators of discrimination/retaliation claims, and the proof of their viability, is the dreaded job transfer.

Key point for you: Transfers and changes that are reasonable or trivial are not fodder for discrimination/retaliation claims, no matter what an employee might think. Here are some other employer acts, transfer-triggered and otherwise, judged not adverse:

  • Lengthened commute through transfer to another facility
  • Poor performance evaluation
  • Assigning additional work
  • Changed job title with no loss of prestige or responsibilities (Answer to No. 4: Not an adverse action)
  • Refusing to grant annual leave when work was backlogged.

On the other hand, here are some acts, besides loss of wages or benefits, that were judged worthy of being logged as adverse:

  • Less distinguished job title
  • Significantly diminished material responsibilities
  • Poor performance appraisal used as basis to detrimentally alter terms or conditions of employment
  • Transfer to a less skilled job or one with harsher working conditions (Answer to No. 3: Adverse action, for sure)
  • Normally lateral transfer without change in financial conditions, but which reduces the employee?s career prospects.

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