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  • Corey Hall

What is an adverse employment action?

An adverse employment action is a negative change in the terms and conditions of your job that negatively impacts you. This can include termination, reduction in benefits, demotion, or reduced opportunities for promotion. Adverse employment actions do not typically include minor workplace annoyances or slight offenses.


To make a claim of employment discrimination or retaliation, you typically need to demonstrate that you have experienced an adverse employment action.



How does California protect you against adverse employment actions?


The state of California prohibits workplace discrimination and retaliation through the Fair Employment and Housing Act (FEHA). An adverse employment action under the FEHA is any course of conduct that, when considered as a whole, has a negative impact on the terms, conditions, or privileges of your employment.


Examples of adverse employment actions under FEHA include wrongful termination, demotion, employer harassment, placement on administrative leave, failure to promote, unfair performance evaluations, job reassignments with negative consequences, reduction in working hours, revocation of a promise for workplace training, and any conduct that is likely to harm your job performance or advancement prospects.


How does the federal government protect you from adverse employment action?


The federal government, through the Civil Rights Act of 1964, prohibits employment discrimination and retaliation in the workplace. According to the Supreme Court, the law defines adverse employment actions differently in cases involving discrimination and retaliation. Title VII applies to all employers in the country.


Adverse employment action in discrimination cases.


For an employer's actions to be considered discriminatory under Title VII, they must result in a negative change in the terms and conditions of your employment. This is often evaluated by looking at whether you have lost opportunities in the workplace.


Under Title VII, an adverse employment action is a meaningful change to your employment that negatively impacts you. This can include termination, layoff, demotion, reduction in salary or benefits, failure to promote, or revocation of a job offer.


Adverse employment action in retaliation cases.


For your employer's actions to be considered retaliation under Title VII, they must be materially adverse actions. This standard is lower than the one used for discrimination claims and is easier to meet. The focus in these cases is not on whether you have lost opportunities in the workplace, but on whether your employer's conduct would have deterred you from making a claim of discrimination or participating in another claim.


Why is it important to know what an adverse employment action is?


To establish a claim of employment discrimination or retaliation, you need to prove that you experienced an adverse employment action. This refers to a negative change in the terms and conditions of your employment motivated by an unlawful reason.

In discrimination cases, you must demonstrate that you suffered an adverse employment action because of your membership in a protected class, such as your race, gender, age, religion, or national origin. In retaliation cases, you must show that you experienced adverse treatment because you exercised your rights or engaged in a protected activity, such as complaining about discrimination, participating in an investigation, or engaging in lawful political activity.

Protected activities can also include making a workers' compensation claim, reporting discrimination, helping with a discrimination claim, or engaging in whistleblower activities. These are actions protected by law and cannot be used as a basis for adverse employment actions.


How can I prove that I suffered from an adverse employment action?


To demonstrate that you have experienced an adverse employment action, you may need to compare your workplace experience before and after the negative change occurred. This can involve looking at differences in your salary, hours worked, benefits, job title, work duties, and opportunities for promotion. If these changes are significant enough to negatively impact your employment experience, you may be able to establish that you have suffered an adverse employment action.


What can I do if I've suffered an adverse employment action?


Suffering an adverse employment action is a telltale sign that your rights may have been violated. You should seek the guidance and representation of an employment attorney. An employment attorney can provide legal advice, help you build a compelling case, and represent you in legal proceedings in a retaliation or discrimination case. Reaching out to an employment attorney is crucial in protecting and enforcing your rights.


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Sources:

Title VII of the Civil Rights Act of 1964

FEHA


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