Adverse Employment Action

Many laws intended to protect workers rely at least in part on the concept of an "adverse employment action." Anti-discrimination laws such as the Americans with Disabilities Act and the Civil Rights Act, anti-fraud laws with whistleblowing provisions, and laws that protect employees' right to collectively bargain, among others, all use this idea to define when an employee becomes eligible for damages due to the actions of their employer. Despite this, the term "adverse employment action" does not appear in the text of any of these laws, and its scope is almost entirely defined by precedent. Because of this, it is important to know just what counts as an adverse employment action, and when adverse actions taken against you may have violated your rights.

Some actions taken by an employer are unambiguously adverse and will almost always create liability for the employer in discrimination or retaliation cases. Firings, suspensions, and cuts to pay or benefits all fall into this category. Losing out on a promotion that you would have otherwise received also counts as an adverse employment action, as does not being hired for a job that you interviewed for. If any of these things happen to you, and you believe the reason is your membership in a protected class or your previous complaints about discrimination or workplace conditions, your rights may have been violated by your employer. For example, if a Black employee notices that they have been passed over for a promotion or employment opportunity in favor of a less-qualified white employee, their employer has committed an adverse action that may have violated that employee's rights and created a claim under the Civil Rights Act. It is important to note that there is not yet a nationwide precedent about what exactly may constitute an adverse action. For Texas workers, the Fifth Circuit has ruled that only final employment decisions are adverse actions for purposes of a discrimination claim. However, at least one other federal Circuit has held that no tangible employment action is needed to assert a discrimination claim.

There are some situations where courts or statues have explicitly broadened the scope of what counts as an adverse action. For example, the Supreme Court has ruled that anti-retaliation provisions extend to include any action that would be likely to dissuade a reasonable worker from making a discrimination claim as an adverse action. Therefore, claims of retaliation under most employment laws have a broader standard for adverse action than claims of discrimination. The whistleblower protections in the Sarbanes-Oxley Act also adopt a broad definition of adverse action, preventing the whistleblower in question from being discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against by their employer.

There is no requirement that a plaintiff be "perfect" in order to be negatively affected by an adverse action. An employee with a disciplinary record may be the victim of discrimination and adverse action if the rules are selectively applied so that only they are punished for their violations. For example, many workers at a job site may break company rules by regularly taking extra time on their breaks. However, if only Hispanic employees are punished for it, while white employees who do the same thing escape discipline, then the employees who were punished may have suffered discrimination. It does not matter that they were guilty of the infraction—their firing is an adverse action because the rules were selectively applied.

If you have suffered an adverse action at your workplace due to discrimination or retaliation, you may be able to bring a claim for legal relief under an anti-discrimination law, a whistleblower protection law, or some other statute. However, it is important to act quickly—the deadlines for doing so can range from less than a month for some federal employment discrimination claims to up to four years under 42 U.S.C. § 1981. The Austin employment lawyers at Wiley Walsh, P.C., can help you make the strongest case possible and can advise you on whether you have suffered an adverse action that has violated your rights. If you are considering taking action against your employer, you can contact us by filling out our intake form or calling our office at (512) 271-5527.