S. Amir Kohan

How Harmful Must the Adverse Actions in Retaliation be to Fall Within Actionable Scope?



Title VII of the Civil Rights Act of 1964 forbids employment discrimination against any individual based on that individual’s “race, color, religion, sex, or national origin.” Pub. L. 88-352, Section 704, 78 Stat. 257, as amended, 42 U. S. C. Section 2000e-2(a). A separate section of the Act’s anti-retaliation provisionóforbids an employer from “discriminat[ing] against” an employee or job applicant because that individual “opposed any practice” made unlawful by Title VII or ìmade a charge, testified, assisted, or participated inî a Title VII proceeding or investigation. Section 2000e-3(a).

The United States Supreme Court in Burlington Northern v. White held “We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. 548 U.S. 53 (2006); Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir.2000). 

Adverse employment actions take many forms. See, e.g.Dahlia v. Rodriguez, 735 F.3d 1060, 1078 (9th Cir.2013)(en banc) (involving employee’s placement on administrative leave, deprivation of ability to take promotional exam, and loss of pay and opportunities for investigative or other job experience); Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir.2003) (involving denial of transfer); Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir.2002) (involving cut in monthly base salary); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 500-01, 506 (9th Cir.2000) (involving low rating on job performance review, decreased job responsibilities, and failure to receive promotions); Hashimoto v. Dalton, 118 F.3d 671, 674 (9th Cir.1997) (involving negative job reference); Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir.1989) (involving layoff); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) (involving transfer of job duties and “undeserved” performance ratings); Ruggles v. Cal. Poly. State Univ., 797 F.2d 782, 785 (9th Cir.1986) (involving failure to hire); E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008, 1012 (9th Cir.1983)(involving four-month disciplinary suspension). 

Other conduct, however, may not constitute an adverse employment action. See, e.g., Lyons v. England, 307 F.3d 1092, 1118 (9th Cir.2002) (involving “mediocre” performance evaluation not made available to other potential employers and unaccompanied by any meaningful change in work assignments); Brooks v. City of San Mateo, 229 F.3d 917, 929 (9th Cir.2000) (involving ostracism by co-workers); McAlindin v. Cnty. of San Diego, 192 F.3d 1226, 1238-39 (9th Cir.1999) (involving refusal to hold job open beyond period dictated by company’s leave policy), amended by 201 F.3d 1211; Nunez v. City of L.A., 147 F.3d 867, 875 (9th Cir.1998) (involving “badmouthing” of employee); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir.1996) (involving transfer with no effect on salary).

The definition of “adverse employment action” in the context of a retaliation claim is different from that in a disparate treatment claim. Whereas an adverse employment action for purposes of a disparate treatment claim must materially affect the terms and conditions of a person’s employment, an adverse action in the context of a retaliation claim need not materially affect the terms and conditions of employment so long as a reasonable employee would have found the action materially adverse, which means it might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also Thompson v. N. Am. Stainless, LP, 562 U.S. 170 (2011) (applying Burlington standard).

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