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What is an adverse employment action?

As an employee in Hawaii, you likely know that if you report workplace discrimination to your supervisor, your company’s management team or the Equal Employment Opportunity Commission, your employer cannot fire you or retaliate against you in any other way. Title VII of the 1964 Civil Rights Act strictly forbids such adverse employment actions

What you may not realize, however, is that adverse employment actions can take an almost infinite variety of forms. Some, such as wrongful termination, are fairly self-evident. Other types of retaliatory discrimination are less blatant, but can include the following:

  • Reducing or threatening to reduce your salary or wages
  • Reassigning your work duties to other employees
  • Relieving you of your supervisory responsibilities
  • Excessively examining your work
  • Threatening to report you or one of your family members to immigration authorities
  • Publicly criticizing you, especially in the media

Obvious or not, all of these things can amount to adverse employment actions and, as such, are forbidden.

Objective standard versus specific acts

In case after case, the U.S. Supreme Court has held that “adverse employment action” is an objective standard by which to judge the things your employer does or does not do to or for you. Nevertheless, there is no all-inclusive definition of the term. Consequently, since courts must determine any given adverse employment action on a case-by-case basis, what amounts to one in someone else’s employment situation may not amount to one in yours. It all depends on the circumstances surrounding what your employer did or failed to do.

For instance, the Justices found all of the following to be adverse employment actions in the cases in which the actions arose:

  • Relocation of an employee to an unfavorable job site
  • Abusive scheduling of an employee’s work or hours
  • Surveillance of an employee while at work
  • Sabotage of an employee’s work
  • Assignment of excessive work to an employee as compared to the work assigned to others holding the same job title or falling within the same pay grade
  • Refusal to invite an employee to team luncheons even though she was a member of the team

What you must be able to prove in order to prevail in an adverse employment action lawsuit is that your employer used prohibited retaliatory tactics against you because you reported workplace discrimination. It also strengthens your case if you can prove that your employer’s additional intention in using such tactics against you was to dissuade other employees from making similar reports in the future.

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Law Office of David F. Simons
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Honolulu, HI 96813

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