Bartz Law Group

Employee Rights Advocates

The Meaning of “Adverse Employment Action” Under California Law

Adverse employment action is any shift in your job’s terms and conditions that is unfavorable to you. From overt acts like a sudden termination to more subtle ones, such as a diminishment of benefits or a stunt of career advancement. This post delves into the meaning of “adverse employment action,” in employment law, particularly concerning Title VII and the Fair Employment and Housing Act (FEHA) in California.

Adverse Employment Action Under Title VII

Under federal employment law, Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on race, color, religion, sex, and national origin. It also safeguards employees from retaliation for asserting their rights under the act or participating in related proceedings. If unsure whether your employer’s acts are adverse, hire a California employment law attorney for legal counsel.

Discrimination

Under Title VII, an adverse employment action includes discrimination in employment terms. Examples are:

  • Discharge
  • Layoffs
  • Demotions
  • Reductions in salary or benefits
  • Refusals to promote or retracting job offers

However, not all workplace setbacks are adverse under Title VII. Examples include:

  • Assigning unfavorable but job description-compliant tasks
  • Not nominating for awards
  • Counseling for poor performance
  • Adding reprimands to personnel files
  • Transferring without affecting position or compensation

Retaliation

A lower threshold than other adverse employment actions characterize retaliation under Title VII of the Civil Rights Act 1964. It is designed to protect employees from punitive measures taken by employers as a response to the employees exercising their legal rights.

Retaliatory actions can vary widely but typically involve any negative change in the employment situation after an employee has made a discrimination claim, participated in an investigation, or supported another employee’s claim. These actions might include:

  • Demotions.
  • Salary reductions.
  • Changes in job assignments or shifts are less desirable.
  • Exclusion from training or professional development opportunities.
  • Increased scrutiny or unfair performance evaluations.

Adverse Employment Action Under State Law in California

FEHA’s definition of adverse employment action is broad, including actions materially affecting employment terms, conditions, or privileges. Examples include:

  • Wrongful termination
  • Demotion
  • Harassment
  • Administrative leave
  • Refusing promotions
  • Unjustifiably poor performance evaluations
  • Reassigning jobs with adverse consequences

Conversely, actions like workplace criticisms, ostracism not amounting to harassment, and unfulfilled threats of adverse actions are not considered adverse under FEHA​​.

Cases In Which Adverse Employment Action Apply

In discrimination scenarios, adverse employment actions are fundamental in substantiating a claim. It is not sufficient to merely prove the presence of discriminatory behavior.

You must demonstrate that this behavior led to an adverse employment action, directly impacting your employment status or conditions. For example, wrongful termination, a demotion without cause, or a significant reduction in salary or benefits.

In retaliation cases, the focus is on whether the employer’s actions would deter a reasonable person from engaging in protected activities. For example, an employee who files a harassment complaint and subsequently faces unjustified negative performance evaluations or exclusion from professional development opportunities might be experiencing retaliation.

While not as blatant as termination or demotion, these actions can still constitute adverse employment actions as they negatively affect the employee’s career trajectory and work environment.

Petitioning an adverse employment action in California requires a thorough understanding of the law. So, if you are in such a situation, hire an employment law attorney to guide you through this challenging legal landscape.