EEOC Retaliation Guidance, Part 2: Was your employment action “adverse”?

By Robin SheaWinston-Salem office of Constangy, Brooks, Smith & Prophete, LLP

What’s a “materially adverse employment action”? This is the second part in what should be a three-part series (it’s possible that we’ll need four) on the proposed Enforcement Guidance on Retaliation and Related Issues recently published by the Equal Employment Opportunity Commission.

To recap from last week, a plaintiff in a retaliation case has to prove three things:

  1. She engaged in “legally protected activity,” and
  2. She suffered an “adverse employment action,” and
  3. There is a “causal connection” between the legally protected activity and the adverse action.

See part one, “You gotta be protected!,” here. This week, we’ll talk about No. 2: “Was your employment action adverse?”

What’s “adverse”?

The Supreme Court decided almost 10 years ago that “adverse employment action” was virtually anything that would deter a reasonable person in the plaintiff’s shoes from engaging in protected activity.

In plain English, that means “just about anything bad,” as long as it isn’t really trivial.

Let’s start with the obvious. You get fired. That is a “materially adverse employment action.” Ditto if you are demoted, if you are denied a promotion or pay increase, if you receive formal discipline, if you are laid off or not recalled, or if you get a bad employment reference.

On the other hand, if your boss forgets to smile at you in the hallway, that’s probably not “adverse” enough to count, even though it might hurt your feelings.

Nine not-so-obvious adverse actions

The EEOC’s proposed guidance has some good examples of employer actions that fall between these two extremes and are still considered “materially adverse employment actions”:

No. 1 – Taking it outside. Action that “has no tangible effect on employment, or even an action that takes place exclusively out of work.” Your boss is sweet as sugar to you at work since you filed your EEOC charge. But at night, she comes to your house and rings your doorbell and runs away. Every night. Waking your baby and making him cry.

No. 2 – Talking smack. Badmouthing the employee in the media, or to professional colleagues. In addition to being “adverse,” this might be defamatory.

No. 3 – Micromanagement, especially scrutiny of work performance or attendance. Also, surveillance.

No. 4 – Damning with faint praise. You used to get “Far Exceeds Expectations,” and now you get “Exceeds.” Even though an “Exceeds” rating is very good, the relatively lower rating could be an adverse action if it affects the percentage pay increase for which you’re eligible, or your opportunities to be promoted.

No. 5 – Being a big jerk. “[A]busive verbal or physical behavior . . . even if it is not sufficiently ‘severe or pervasive’ to create a hostile work environment.”

No. 6 – “Where in Zacatecas did you say you’re from?” Scrutinizing an employee’s immigration or visa status, or reporting the employee to ICE, or threatening deportation.

No. 7 – The mob approach. This was also settled by the Supreme Court a while ago. If the employer takes action against an employee’s family member, significant other, or someone else in a close relationship to the employee, that’s an “adverse action” both to the employee and to the direct victim.

No. 8 – Changing work location, or schedule, in a bad way.

No. 9 – “You’ll never catch me repeating gossip, so listen close the first time.” (Hat tip to Hee HawOr somebody.) Disclosing an employee’s confidential information can be an adverse action.

Fun facts about adverse employment action

*Even if the adverse action doesn’t actually deter the employee involved from engaging in protected activity, it’s still “materially adverse” if it would deter a hypothetical reasonable person from engaging in the activity.

*Before you employers get too discouraged, remember that the plaintiff still has to establish a connection between her protected activity and the adverse action. This is also known as “causation,” and in my experience, it’s where most retaliation cases break down for plaintiffs. Tune in next week, and read all about it!

About Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.