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What is Considered an Adverse Employment Action for Federal Employment Discrimination Action Purposes?

By Thomas McKinney

In order to pursue a successful employment discrimination action in New Jersey, you will need to establish several things. You will first need to establish yourself as a member of a group protected by an applicable law. You will next need to demonstrate that you were qualified for the position that you held and that you suffered an adverse employment action due to being a member of a protected group. Should these elements all be met, you will have established a prima facie case of employment discrimination based on intentional discrimination you suffered in the workplace. Your employer will then need to articulate a non-discriminatory reason for the adverse employment action. If your employer is able to do this, then the burden once again shifts to you, the employee, to prove by a preponderance of the evidence that the reason given by your employer is merely a pretext or an excuse for the true, discriminatory reason.

The adverse employment action is an integral element in successfully asserting an employment discrimination claim and will also play a pivotal role in the remedies available to you should your claim prove successful. While many adverse employment actions seem readily apparent, others, while subtler, are still very real and will satisfy this necessary element of your employment discrimination action.

What is Considered an Adverse Employment Action for Federal Employment Discrimination Action Purposes?

To begin, let’s take a look at the more obvious actions that would be considered adverse employment actions in support of your employment discrimination claim. These actions often include things like:

  • Termination
  • Demotion
  • Suspension without pay
  • Disciplinary actions
  • Poor performance reviews
  • Reduction in pay
  • Reduction in hours
  • Disciplinary write-ups

These adverse employment actions, however, are not representative of all potential adverse employment actions victims of workplace discrimination suffer. Oftentimes, the adverse employment action is subtler. Instead of being a grand and overt gesture, the adverse action comes in what some describe as “death by a thousand cuts.” In other words, the employee suffers many, smaller adverse actions that pick away at them and their position at work a little at a time, but end up have a significant impact.

While still very real, some of the less than clear examples of adverse employment actions can lead a court into murky waters. In fact, federal courts across the country have reached different conclusions when presented with similar facts about potential adverse employment actions. To illustrate this point, let’s take a look at how federal courts have handled Title VII employment discrimination cases.

Title VII of the Civil Rights Act makes employer discrimination based on an employee’s protected class status unlawful. The Equal Employment Opportunity Commission, the office tasked with enforcing Title VII, has specifically shed light on what an adverse employment action by explicitly stating that these actions are included, but not limited to, things like firing, failure to promote, and more. Some federal courts, however, have interpreted Title VII to also require that an adverse employment action result in “materially adverse consequences.” This is a higher threshold to meet and some actions that would otherwise be considered adverse may not do so for purposes of an employment discrimination claim. For instance, if an employee experienced an unfavorable, but lateral transfer at work, this may not be considered an adverse employment action due to it not being a necessarily “materially adverse consequence.”

Employment Law Attorneys

If you think you have suffered workplace discrimination, do not hesitate to reach out to the trusted employment law attorneys at Castronovo & McKinney. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.