How minimal can an act be and still be deemed an adverse employment action under the anti-retaliation laws? Can even giving an employee a funny look be considered adverse?
You’d be surprised.
What Is Retaliation?
Title VII contains an anti-retaliation provision, which, as my partner Amy Epstein Gluck wrote last May, makes it “unlawful for an employer to subject an employee to an adverse action when that employee has opposed any practice which is an unlawful employment practice under Title VII.
“Once an employee complains about discrimination to HR, if the employer terminates the employee, the employer can be held liable for retaliating against the employee for complaining about discrimination. The EEOC considers ‘opposition’ to be complaining to anyone about alleged discrimination suffered by oneself OR others!”
Other such statutes also contain anti-retaliation provisions: the Age Discrimination in Employment Act (“ADEA”), the Americans with Disabilities Act (“ADA”), Section 501 of the Rehabilitation Act, the Equal Pay Act (“EPA”) ,and the Genetic Information Nondiscrimination Act (“GINA”).
The Elements Of Retaliation
To make out a claim for retaliation, it must be shown that (1) plaintiff was engaged in a “statutorily protected activity” by opposing an employment practice that she has a good faith, reasonable basis to believe is unlawful; (2) an “adverse employment action” was taken by the employer, and (3) there is some causal connection between the two.
What Is An “Adverse Employment Action”
Point (2) above — adverse employment action – is a major issue in employment discrimination law. We know that termination is an adverse action, as is demotion, transfer, ignoring or yelling at an employee, taking away work or responsibility or giving too much work.
But how minimal can an act be and still be deemed to be “adverse?” Can even a scowl or frown be considered an adverse act?
This is not merely an academic question since an employee who alleges or files a discrimination claim or complaint is protected from – even insulated against – retaliation, a claim which is way easier to prove than the underlying claim of discrimination.
Well, it turns out that virtually any employment action has the potential of being deemed – or at least argued to be retaliatory.
Take a new decision from a federal court in NYC.* To cut to the retaliatory chase, a pro se plaintiff (given the requisite leeway) had his discrimination claim under the ADA dismissed, but the Court upheld the sufficiency of his retaliation claim.
Noting that in an ADA case, an adverse employment action “is an action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination,’” the Court marshaled plaintiff’s proffered evidence of an adverse action being taken against him:
- One boss “stopped saying good morning” to him, and a second boss “totally change[d]” in the way he spoke to him; and spoke to him without a “warm welcome in his voice;”
- The second boss “continually monitored him at work,” and asked him about two instances in which he incurred overtime without prior approval; and
- Both bosses “talked to him like he was a criminal.”
That’s about it.
Although the employer argued that these alleged acts were “petty slights or trivial inconveniences,” the Court held that while it was “a close question,” there was a genuine issue of disputed fact requiring a trial.
Takeaway: Whew! It turns out that very little can be deemed adverse.
An employer’s best practice is to take a “business as usual” approach: treat the employee as if no complaint had been filed, i.e., like any other employee; communicate openly and in a non-intimidating manner with the employee; and – as always – document, document, docment all decisions.
And, oh yes – don’t forget to say “Good Morning!”
*Bien-Aime v. Equity Residential, No. 15-CV-1485 (VEC) (S.D.N.Y. Feb. 22, 2017)