What Is an Adverse Employment Action?
As one of the 3,363 private-sector employees in New Jersey, you have a right to a safe workplace free of discrimination and retaliation. At O’Connor, Parsons, Lane & Noble, our employment lawyers help our clients enforce their rights after they experience an adverse employment action.
The United States and New Jersey have laws protecting employees’ civil rights in the workplace. These laws allow employees to file complaints if the employer makes an unlawful employment decision.
When prohibited by law, employers may not take adverse employment action, meaning any decision that negatively affects the employee’s employment status.
The most common example of adverse action is firing an employee. However, the specific definition of adverse actions depends on which laws the employer violated.
What Is an Adverse Action under LAD and Title VII
Title VII of the 1964 Civil Rights Act and the New Jersey Law Against Discrimination (LAD) prohibits intentional discrimination based on an employee’s membership in a protected class (race, religion, age, sex, etc.). Under the law, an employer may not treat protected employees disparately when deciding the “compensation, terms, conditions, or privileges of employment.” If you believe you are a victim of employment discrimination, your complaint must show that you:
- Are a member of a protected class;
- Suffered an adverse employment action;
- Met the employer’s legitimate expectations at the time of the adverse employment action; and
- Were treated differently from similarly situated employees outside your protected class.
Therefore, you must prove that your employer took adverse action before you can claim a civil rights violation. Federal court cases and the EEOC have interpreted adverse actions under Title VII to include:
- Failure to promote,
- Pay reduction,
- Reprimanding the worker,
- Engaging in harassment,
- Creating a hostile work environment,
- Suspending or laying the worker off,
- Blacklisting the employee,
- Transferring the worker to another job,
- Altering the employee’s responsibilities and duties,
- Denying overtime or time off,
- Denying benefits,
- Making threats,
- Intimidating the worker, and
- Making a constructive discharge.
In addition, some federal courts have required the complaint to show the adverse employment action was “materially unfavorable,” meaning the employee must have experienced an economic loss.
On the other hand, the United States Court of Appeals for the Fifth Circuit limited adverse employment actions to final employment decisions like hiring, termination, and pay. While all discrimination in employment decisions is unlawful and undeserved, you typically need to prove that the action caused a significant change in your compensation, benefits, or work duties.
- The employee engaged in an activity protected by Title VII;
- The employer subjected the employee to a materially adverse action at the time or after the protected conduct took place; and
- There was a causal connection between the challenged activity and the protected activity.
In retaliation cases, actions like termination, demotion, and suspension count as retaliatory acts, just like Title VII discrimination lawsuits. However, the Supreme Court has ruled that a broader range of actions can be considered an “adverse action” in retaliation. Accordingly, the action does not need to be related to the workplace or the employee’s employment. Any conduct that could “dissuade a reasonable worker from making or supporting” a discrimination complaint is an adverse retaliatory action.
To show causation, an employee in the private sector or state or local government must show that “but for” a retaliatory motive, the employer would not have taken the adverse action. In this case, “but for” causation means that even if there are multiple causes, if not for the employee’s complaint, the alleged retaliatory activity would not have occurred.
The law protects workers who refuse to engage in and report illegal activity. In addition to Title VII retaliation claims, federal laws such as the Sarbanes Oxley Act of 2002 (SOX) and Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), and New Jersey’s Conscientious Employee Protection Act, require complainants to show:
- A reasonable belief that the employer's conduct was violating either a law, rule, regulation, or public policy;
- The employee performed a whistleblowing activity;
- An adverse employment action by the employer; and
- A causal connection.
First, the whistleblower must establish the elements by a preponderance of the evidence. The employer can avoid the consequences only if they provide “clear and convincing evidence” that they would have taken the adverse action even if the employee had not engaged in protected activity.
How Can the Legal Process Help Me?
If you’ve been subject to adverse employment action, the law allows you to recover. Under New Jersey law, every citizen has the right to employment. If your employer makes a decision that negatively affects you because you are a protected class member, filed a complaint, or reported illegal activity, you can enforce your rights.
It’s essential to know what law your employer violated when they took adverse action. The action affects your legal rights, including whether you can sue your employer, when you must take action, and what you must prove to win your case.
For example, federal employees have only 45 days to report discriminatory action; private-sector and other types of employees have 180 days. Finally, the type of adverse action determines the damages you may recover. In some cases, you can receive an injunction against future action, reinstatement, or reimbursement.
O’Connor, Parsons, Lane & Noble: Protecting Your Rights After an Adverse Employment Action
At our law firm, we consider the people involved in our cases. Adverse action usually comes after a long period of conflict and can affect your overall well-being. Our attorneys understand federal and state employment laws and are here to defend your rights. Contact us and start your recovery today.