Retaliation should be a serious concern for employers as it is one of the most common claims filed with the Equal Employment Opportunity Commission (“EEOC”). For many years, over half of the annual charges filed with the EEOC have been retaliation charges.
Retaliation occurs when an employer takes an adverse employment action against an employee for engaging in a protected activity, such as requesting a disability accommodation or raising concerns about workplace harassment. It is important for employers to know what an adverse action is in the workplace so they can avoid being the subject of a retaliation claim.
An adverse employment action is defined under the law as something that, materially and adversely affects the terms, conditions, or privileges of someone’s employment. In simpler terms, an adverse employment action is something that negatively affects an employee’s employment in a substantial way. Many cases that involve adverse employment actions focus on whether an employee lost opportunities in the workplace.
Typically, when someone commits an adverse employment action their goal is to not only punish the employee for engaging in a protected activity but also to discourage other employees from doing the same. In order to be an adverse employment action, there must be evidence that an employer unlawfully took action against a particular employee that drastically impacted the employee’s work.
An adverse employment action can take many forms:
- Job Standing: Demotion, termination, negative performance reviews, less desirable assignments, exclusion from projects.
- Work Environment: Denying or taking away accommodations, denying breaks, excessive workload, physical or verbal harassment.
- Career Prospects: Refusing training, cutting hours, denying bonuses.
- Reputation: Spreading false rumors or gossip, increased scrutiny.
Some actions, such as termination or suspension, are very clearly adverse employment actions. While other actions, such as schedule changes or denied promotion, can be more difficult to argue are an adverse employment action. Not all negative actions qualify. The key is determining the severity and impact on the employee’s work. Inconveniences or minor annoyances typically wouldn’t rise to the level of an adverse employment action.
Further, minor changes or the denial of minor changes are not deemed to be substantial enough to constitute an adverse employment action. Employers should use caution though as some actions that are considered minor, may be taken into consideration if they are used as a tool to facilitate more severe actions. For instance, a single negative performance review or being placed on a performance improvement plan (PIP) might not be enough on their own. However, if they are used as a pretext to justify a more severe action like termination, they could be considered part of a retaliation claim.
Ultimately, courts consider the context of the situation and the totality of circumstances when determining if retaliation occurred. This is why training on retaliation and what constitutes an adverse employment action is crucial, especially for managers and supervisors.
Retaliation claims are some of the easiest claims to prove and can be very costly for employers. By understanding adverse employment actions and taking steps to prevent retaliation, employers can minimize their legal risk and foster a more positive work environment.
