Last updated Oct. 30, 2017.
To prevail in a workplace discrimination or whistleblower suit, you must show that your employer took action against you due to unlawful bias and/or retaliation. However, courts don’t consider any and every employer action to be serious enough to support a claim. Rather, the law requires that workers prove they suffered an adverse employment action due to their employer’s bias or retaliation.
But what, exactly, does the term “adverse employment action” mean? Does it mean you have to be fired or will something less dire suffice? If so, does a small slight like being disinvited from a firm networking event qualify as “adverse”? If not, can dozens of small slights combine to prove an “adverse employment action”?
Let’s take a look.
Employment Actions That Are Clearly Adverse
Some actions are so obviously harmful to workers that there’s no question they qualify as adverse. Typically, these actions hit workers where it hurts — in the pocketbook. They are targeted at eliminating the worker’s employment, making it less profitable, and/or reducing the worker’s chances for advancing to a higher rank or pay.
Such adverse employment actions include:
- Reduced or slashed hours
- Passing over for promotion
- Bogus or unwarranted discipline (as this is usually designed to set the worker up for termination)
Undesirable “Transfers” and “Reassignments”
Employers know that clearly, adverse employment actions such as a demotion or pay cut are likely to raise alarm bells and prompt workers to call an attorney. As such, employers often couch unlawful discrimination and retaliation in the form of lateral “transfers” that may not even involve a reduction in official rank or in pay. Usually, these “transfers” result in workers being reassigned work that is more menial, less prestigious, or only tenuously related to their prior work. Moreover, these transfers can require workers to take on odd hours or shifts or work in substandard conditions.
Courts, however, have gotten wise to this act. New Jersey state and federal courts recognize that transfers and reassignments may qualify as adverse employment actions when they result in factors like a loss of status, less desirable job duties, a diminishment of authority or professional prestige, and/or toleration of harassment by other employees.
There is no bright-line rule as to the number and degree of these factors required to prove an adverse employment action. Like so many areas of law, it’s something courts decide on a case-by-case basis, with every ruling dependent upon a specific set of facts.
That being said, New Jersey courts found lateral “transfers” and “reassignments” to be adverse under the following circumstances:
- A police officer who was transferred from K-9 patrol to a light-duty administrative position and forced to turn over his weapon.
- Another police officer who was forced to resign from a prestigious role as lead of the SWAT team, denied permission to attend firearms training, removed from the detective bureau, and given more demeaning tasks as opposed to supervisory responsibilities.
- A teacher who was told she could no longer participate in certain professional-oriented teaching programs, given substandard evaluations, moved to a dilapidated classroom, and denied photocopy services and a key to the science lab.
- A marketer who was transferred from working at the Trump Taj Majal, where he had success booking informational tours on timeshare properties, to the Trump Plaza, where he experienced less success doing so.
The Upshot for Employer Actions Short of Discharge, Suspension or Demotion
New Jersey has found adverse employment action to exist based upon “many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.” Nardello v. Township of Voorhees, 377 N.J. Super. 428, 435 (App. Div. 2005).
You’ll notice that, in the foregoing quote, I emphasized the words “many” and “pattern.” Accordingly, if you’re not subjected to the kind of clear adverse employment action discussed in Section A, above, you may still be able to assert a claim against your employer if you’ve suffered numerous smaller actions over time that together indicate a pattern and practice of retaliation or discrimination.
These smaller actions should not be negligible. Rather, they should show an intent to isolate and harass. You’d be hard-pressed to claim retaliation or discrimination just because your boss moved you from your spacious office with the great view to the smaller office two doors down. However, being removed to an office located far away from your department, perhaps even on a different floor, may be significant.
Likewise, being denied permission to attend a fun departmental lunch outing is probably not grounds for complaint. Being denied permission to attend a professional training course that you are required to complete before applying for a promotion is.
Get Help with Proving an Adverse Employment Action
Sometimes it’s unclear whether your employer’s actions against you amount to unlawful conduct. If you suspect you are being subject to workplace retaliation or discrimination, call our offices today for a free consultation.
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