Exploring the Criteria For Adverse Employment Action

Employees in California have rights if they have been subject to an adverse employment action, defined as anything that affects the terms, conditions, or privileges of the employment.

Read on for more.

Introduction

As an employee, you are protected by a long list of anti-discrimination laws at the state and federally. It is often quite evident when these protections get violated – say, through retaliation or discrimination. For instance, maybe you were denied a promotion, demoted, denied a raise, or were the victim of sexual harassment by a manager.

Unfortunately, there are many times when employees are subjected to specific situations in which they aren’t quite as clear. Maybe it is discrimination, maybe not. Perhaps it is about retaliation, or maybe not. Maybe it is just unfair treatment.

Under California law, employees have rights if they have been the subject of an adverse employment action. So, how do you know if that is what you have been dealing with? What counts as an adverse employment action anyways?

Defining an Adverse Employment Action

An adverse employment action can be defined as anything an employer does that adversely affects the employee and their employment. This may be related to any employment terms, the workplace environment conditions, or the privileges they should receive.

A few examples of adverse employment actions include:

• Getting moved to a less-than-desirable position or getting demoted
• The exclusion of an employee from team meetings – even though they are part of the team
• Constant schedule changes

By law (state and federal), specific criteria can never become the basis of an employer’s action. And if so, it could most definitely constitute an adverse employment action. These include:

• Race
• National origin
• Color
• Sex
• Age (over 40)
• Sexual orientation or sexual identity
• Gender identity, gender expression
• Marital status
• Religion
• Military status
• Request for pregnancy disability leave
• Disability and/or medical condition
• Genetic information
• Request for family care leave
• Request for leave for health reasons
• Retaliation for reporting patient above in tax-supported institutions

What California Law Says

According to the Judicial Council of California, CACI No. 2509, “Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken 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 [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, 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.”

It is up to the plaintiff to prove that they were, in fact, subject to the said adverse employment action.

Supreme Court Decisions

Knowing what can and cannot count as an adverse employment action can get tricky. After all, one action may seem more extreme to one person than another – so does it count? Or is it merely something that wouldn’t do more than upset an average employee?

Many supreme court cases over the years have set a precedent on a few instances of adverse employment actions when the circumstances are right. These include:

• Subjecting an employee to scheduling practices that seem abusive
• Monitoring employees through surveillance while at work and performing their duties
• Not including a particular employee with the rest of the team regarding events, lunches, etc.
• Undermining (or even sabotaging) one’s work
• Asking an employee to go to an unfavorable – or even questionable – location
• Requiring one employee to do more work than others in the same job description/ pay-grade

Each of these things has been found, by the supreme court, to be an example of an adverse employment action.

Proving Adverse Employment Action

One of the first things you want to do if you believe you have been on the receiving end of an adverse employment action is to talk to an attorney. Going over the details can help to clarify whether or not you do have a valid claim – and whether or not you can prove it. There are four steps you can take to establish this.

1. First, determine whether or not you are a member of a protected class – and if your situation likely resulted because of that.
2. Next, show that you suffered at the hands of your employer due to an adverse employment action.
3. Prove that you met the employer’s expectations when the adverse action occurred. You have to prove that the employer’s action did not result from something you did. In other words, you can’t call off work numerous times and then be upset when you are demoted to a position requiring less time.
4. Be able to prove that you were treated differently than other employees placed in similar situations or not in your same protected class.

Again, working with an attorney is the best way to determine whether or not you have a case for adverse employment action – and then being able to prove your case when brought against your employer.

The Closing

Many different situations can count as adverse employment actions. Some are very evident when they involve certain protected classes. Others are a little more tricky. It is best to invest in an attorney to review your case and determine whether or not your situation meets the criteria for an adverse employment action – and then develop a strategy to prove it fully.

Remember, when you bring a case against your employer, you will likely be met with a team of lawyers ready to fight your accusations. Many will do what it takes to avoid too much public exposure and wake up other employees. So, arm yourself with an experienced employment lawyer of your own.

As an employee, you have rights. Protect them!