Adverse Employment Action

Adverse employment action, particularly in the context of wrongful termination and employment law in California, is a critical concept with wide-ranging legal implications. Here’s a comprehensive overview of this concept, including the legal framework, consequences, potential problems, and examples:

Definition and Legal Framework

1. Adverse Employment Action: This refers to any action taken by an employer that negatively affects an employee’s job status or working conditions. This can include termination, demotion, reduction in salary, significant changes in job responsibilities, or creating a hostile work environment.
2. Legal Basis: In California, adverse employment actions are primarily governed by the Fair Employment and Housing Act (FEHA) and relevant case law. These laws protect employees from adverse actions that are discriminatory or retaliatory in nature.

Application in Legal Context

1. Wrongful Termination: Termination of employment is the most clear-cut example of an adverse employment action. If the termination is based on discriminatory reasons (race, gender, age, etc.), it constitutes wrongful termination under FEHA.
2. Other Forms of Adverse Actions: Actions short of termination, like demotions or unfavorable job reassignments, can also be considered adverse if they materially affect the terms and conditions of employment.

Legal Consequences

1. For Employees: If an employee successfully proves that an adverse employment action was wrongful, they may be entitled to reinstatement, back pay, damages for emotional distress, punitive damages, and attorney fees.
2. For Employers: Employers found to have taken wrongful adverse actions can face significant financial penalties, mandatory changes in workplace policies, and damage to their reputation.

Problems and Challenges

1. Proving Intent: Demonstrating that an adverse action was due to unlawful reasons (like discrimination or retaliation) can be challenging.
2. Subjectivity in Assessment: What constitutes a significant change in job conditions can be subjective and varies case by case.
3. Mixed Motive Situations: Cases where both legitimate and unlawful reasons exist for an adverse action are complex and difficult to adjudicate.
4. Documentation and Compliance: Employers must carefully document all employment actions to defend against potential claims.

Examples

1. Example of Wrongful Adverse Action: An employee is demoted after filing a sexual harassment complaint. If the demotion is found to be retaliatory, it would be considered a wrongful adverse employment action.
2. Example of Lawful Adverse Action: An employee is demoted due to consistent poor performance, documented over time. If the demotion is based solely on performance and not on any protected characteristic, it may not be considered wrongful.

Conclusion

Adverse employment actions encompass a range of employer decisions that negatively impact an employee’s job. In California, the legality of such actions often hinges on whether they are discriminatory or retaliatory. Both employees and employers must understand the intricacies of these laws to navigate the employment landscape effectively. Given the complexities and potential legal ramifications, it is advisable to seek expert legal advice in these matters.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2509. “Adverse Employment Action” Explained

[Name of plaintiff] must prove that [he/she/nonbinary pronoun] was subjected to an adverse employment action.

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.

New June 2012

Directions for Use

Give this instruction with CACI No. 2500, Disparate Treatment—Essential Factual Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements, CACI No. 2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential Factual Elements, if there is an issue as to whether the employee was the victim of an adverse employment action.

For example, the case may involve a pattern of employer harassment consisting of acts that might not individually be sufficient to constitute discrimination or retaliation, but taken as a whole establish prohibited conduct. (See Yanowitz v.

L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116

P.3d 1123].) Or the case may involve acts that, considered alone, would not appear to be adverse, but could be adverse under the particular circumstances of the case. (See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389–1390 [37 Cal.Rptr.3d 113] [lateral transfer can be adverse employment action even if wages, benefits, and duties remain the same].)

Sources and Authority

• “Appropriately viewed, [section 12940(a)] protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting

the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.” (Yanowitz, supra, 36 Cal.4th at pp. 1053–1054, footnotes omitted.)

• “[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” (Yanowitz, supra, 36 Cal.4th at pp. 1054–1055.)
• “An ‘ “adverse employment action,” ’ . . . , requires a ‘substantial adverse change in the terms and conditions of the plaintiff’s employment’. ” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063 [119 Cal.Rptr.3d 878, internal citations omitted.)
• “Contrary to [defendant]’s assertion that it is improper to consider collectively the alleged retaliatory acts, there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” (Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations omitted.)
• “Moreover, [defendant]’s actions had a substantial and material impact on the conditions of employment. The refusal to promote [plaintiff] is an adverse employment action under FEHA. There was also a pattern of conduct, the totality of which constitutes an adverse employment action. This includes undeserved negative job reviews, reductions in his staff, ignoring his health concerns and acts which caused him substantial psychological harm.” (Wysinger

v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 [69 Cal.Rptr.3d 1], internal citations omitted.)

• “The employment action must be both detrimental and substantial . . . [¶]. We must analyze [plaintiff’s] complaints of adverse employment actions to determine if they result in a material change in the terms of her employment, impair her employment in some cognizable manner, or show some other employment injury

. . . . [W]e do not find that [plaintiff’s] complaint alleges the necessary material changes in the terms of her employment to cause employment injury. Most of

the actions upon which she relies were one time events . . . . The other allegations . . . are not accompanied by facts which evidence both a substantial and detrimental effect on her employment.” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511–512 [91 Cal.Rptr.2d 770], internal citations omitted.)

• “The ‘materiality’ test of adverse employment action . . . looks to ‘the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,’ and the test ‘must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace………. ’ ” (Patten, supra,

134 Cal.App.4th at p. 1389.)

• “Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 366–367 [225 Cal.Rptr.3d 321].)
  • “[A] mere oral or written criticism of an employee……. does not meet the

definition of an adverse employment action under [the] FEHA.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 92 [221

Cal.Rptr.3d 668].)

• “Mere ostracism in the workplace is insufficient to establish an adverse employment decision. However, ‘ “[W]orkplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for          retaliation

cases.” [Citation].’ ” (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 212 [126 Cal.Rptr.3d 651], internal citations omitted.)

• “Not every change in the conditions of employment, however, constitutes an adverse employment action. ‘ “A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.”……………………………………………………………………………. ’

‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’ ” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 [58 Cal.Rptr.3d

444].)

• “[R]efusing to allow a former employee to rescind a voluntary discharge—that is, a resignation free of employer coercion or misconduct—is not an adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161 [217 Cal.Rptr.3d 258].)
  • “[T]he reduction of [plaintiff]’s hours alone could constitute a material and adverse employment action by the [defendant].” (Light, supra, 14 Cal.App.5th at p. 93.)

• “[A] job reassignment may be an adverse employment action when it entails materially adverse consequences.” (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1279 [227 Cal.Rptr.3d 695].)
• “[T]he denial of previously promised training and the failure to promote may constitute adverse employment actions.” (Light, supra, 14 Cal.App.5th at p. 93.)
• “The trial court correctly found that the act of placing plaintiff on administrative leave [involuntarily] was an adverse employment action.” (Whitehall, supra, 17 Cal.App.5th at p. 367.)
• “[Plaintiff] has presented no authority, and we are aware of none, holding that a single threat of an adverse employment action, never carried out, could itself constitute an adverse employment action under the standard articulated in Yanowitz and its progeny.” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 879 [235 Cal.Rptr.3d 161].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 1052–1055

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:203, 7:731, 7:785 (The Rutter Group)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, § 249.12 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, § 100.42 (Matthew Bender)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.