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Total Articles: 12

Second Circuit: Notice of Termination is an Adverse Action Even if Rescinded

Last week, the U.S. Court of Appeals for the Second Circuit clarified its standard relating to rescinding terminations, and more specifically, how they interpret “adverse consequences.” The issue came before the court in a matter where an employee returned from her honeymoon, visibly pregnant, and was told that her position was going to be eliminated within a few weeks. Shortly thereafter, the employee retained an attorney and notified her employer of the same. Several days later, the employer rescinded her termination and reinstated her position. When analyzing rescinding termination claims under Title VII, the standard is to determine if the reinstatement had any lasting “adverse consequences.” Various circuit courts and lower courts have historically considered whether the employee was restored to the same salary, benefits, and title when reinstated in order to determine if there were adverse consequences to the employee. If the same material conditions were reinstated, courts would not recognize adverse consequences. Here, the employee did not claim any difference in salary, title, or benefits and therefore, the lower court ruled that the employee incurred no adverse consequences.

EEOC Argues Adverse Employment Action Irrelevant in Racial Segregation Cases

Recently, the EEOC filed an appeal in EEOC v. AutoZone, Inc. et al., arguing that the lower court erred in dismissing the case against AutoZone Inc. by improperly requiring the EEOC to show that the employee at issue suffered an adverse employment action. AutoZone argued that its decision to transfer the employee was made with the intent to increase sales and customer satisfaction, and that the employee suffered no loss in pay or benefits as a result of its decision.

Paid Suspension Not Adverse Employment Action under Title VII, Third Circuit Holds

A paid suspension “typically” does not constitute an “adverse employment action” under the substantive provision of Title VII of the Civil Rights Act (Section 703), the federal appeals court in Philadelphia has held in a case of first impression for the circuit, joining other courts that have ruled on the issue. Jones v. SEPTA, No. 14-3814, 2015 U.S. App. LEXIS 14094 (3d Cir. Aug. 12, 2015). The Court, however, declined to address whether a paid suspension could constitute an adverse employment action in the retaliation context under Title VII (Section 704). The Third Circuit has jurisdiction over Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands.

Second Circuit Holds Extension of Probationary Employment Can Be Adverse Employment Action

In Tolbert v. Smith, No. 14-1012-cv, 2015 U.S. App. LEXIS 10656 (2d Cir. June 24, 2015), the Second Circuit issued a decision holding that extending a probationary term instead of granting a teacher tenure constitutes an adverse employment action sufficient to support a claim for race discrimination — the fact that the teacher is provided with another year of probationary employment notwithstanding. The court noted that offering a fourth year of probation is intertwined with a denial of tenure, which amounts to the “denial of a material improvement in the conditions of the plaintiff’s employment” — since the benefits of having received tenure are denied, including benefits such as termination only for cause. Accordingly, such a refusal of a material employment benefit for a discriminatory reason is violative of the civil rights statutes.

Fifth Circuit Declines to Clarify When an Employment Action is "Adverse" Enough to Support a Discrimination Claim

When presented with an employment discrimination claim, one of the early questions any agency or court must answer is whether the claimant has suffered an “adverse employment action.” Simply stated, even if a discriminatory motive can be shown, is the harm suffered by the claimant significant enough to support a viable discrimination claim? This question arises regardless of whether the complaint is made under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), or other state or federal employment law. Not every slight, indignity, or inconvenience experienced in the workplace is sufficient to meet this standard, but where does one draw the line?

Fifth Circuit Finds Restriction of Job Responsibilities May Constitute Adverse Employment Action Under Title VII

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to fail to hire or to discharge an individual or otherwise discriminate against such individual “with respect to his [or her] compensation, terms, conditions, or privileges of employment” because of a protected characteristic, including race.

Restriction of job responsibilities – even without diminished salary or benefits – may constitute an “adverse action” under Title VII.

Title VII makes it unlawful for an employer to fail to hire or to discharge an individual or otherwise to discriminate against such individual “with respect to his compensation, terms, conditions, or privileges of employment” because of a protected characteristic, including race.

Under certain circumstances, a voluntary or requested transfer may establish an adverse employment action.

Can transferring an employee into a position for which he had applied nine months earlier be viewed as an “adverse employment action” sufficient to support a claim of discrimination? (HINT: Don’t bet your paycheck on this one.)

Title VII Protects Both Current and Former Employees From Discriminatory Adverse Employment Actions

Title VII of the Civil Rights Act makes it an unlawful employment practice for an employer to discriminate against “any individual" on the basis of membership in a protected class. In a reminder to employers, the 4th U.S. Circuit Court of Appeals has reiterated the generally accepted interpretation that in this language, Title VII explicitly allows former employees, as well as current ones, to bring an action under that statute.

Performance Improvement Plan (PIP) is not an "adverse employment action" for purposes of federal anti-discrimination laws.

In order to support a claim of employment discrimination, an individual typically must show that an “adverse employment action” was taken, and that such action was based upon a protected characteristic. To constitute an adverse employment action for purposes for federal anti-discrimination laws, such action must create a significant change in an employee’s status, and includes firing, failure to promote, reassignment with significantly changed job responsibilities, or a significant change in other employee benefits.

First Circuit holds that Title VII does not protect employees from the "ordinary slings and arrows that suffuse the workplace every day."

The 1st U.S. Circuit Court of Appeals reminds us that while Congress’ antidiscrimination laws are designed to protect workers’ rights, they are “not intended to function as a collective panacea for every work-related experience that is in some respect unjust, unfair, or unpleasant.” Consistent with this statement, the court dismissed the claims of four female radiology technicians who complained that their supervisor’s abrasive behavior and its resulting “nerve-wracking” work environment caused each of them to leave her employment at a Department of Veterans Affairs (VA) hospital

Nurse's Blacklisting Claim Rejected (pdf).

Court finds former supervisor's statements were not "adverse".
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