Employment Discrimination Lawyer’s Best Answer: Can my employer cut my wages? What if my employer demoted me? Can my employer change my shift? What should I do?
It is not unlawful for an employer to dislike Black or Hispanic workers. The boss is allowed to hate the fact that women get pregnant or when service members leave for military service. Such private thoughts only become actionable cases of race discrimination, national origin discrimination, pregnancy or gender discrimination or military discrimination when the boss or employer take an adverse action against the employee in the protected class. So what is an adverse employment action? Obviously, wrongful termination is an adverse action, but what else?
In Valentine v. Westshore Primary Care Assoc., 2008-Ohio-4450, ¶ 78, the Cuyahoga County Court of Appeals explained:
An adverse employment action is defined as a “materially adverse change in the terms and conditions of [plaintiff’s] employment.” Hollins v. Atlantic Co., (C.A.6, 1999), 188 F.3d 652, 662. Examples of adverse employment actions include firing, failing to promote, reassignment with significantly different responsibilities, a material loss of benefits, suspensions, and other indices unique to a particular situation. Burlington Indus., Inc. v. Ellerth (1998), 524 U.S. 742, 761.
Let’s look at an example. The United States Sixth Circuit Court of Appeals is the Appellate Court for Ohio, Tennessee, Michigan, and Kentucky. In a recent case the Sixth Circuit provided important guidance on what constitutes an adverse employment action. Being able to show that your employer has harmed you is a key element of many discrimination claims.
In Deleon v. Kalamazoo Ctny Road Comm’n the court held that an employer’s decision to transfer an employee involuntarily to a lateral position can be an adverse employment action, “so long as the particular circumstances present give rise to some level of objective intolerability.”
Robert Deleon was employed as an Area Superintendant for Kalamazoo County, Michigan for over twenty eight years. Deleon is also Hispanic of Mexican descent, and fifty three years old. In November 2008, he applied for a different position with Kalamazoo County entitled Equipment and Facilities Superintendant. The job description for the new position warned that the position was located primarily in an office and garage where Deleon would be exposed to constant loud noise and heavy diesel fumes. If Deleon was awarded the position, he intended to ask for a raise in his salary to compensate him for harsh working conditions. However, Deleon was not selected for the position. Two other individuals served as the Equipment and Facilities Superintendant before quitting over the next nine months. Realizing the difficulty in keeping a qualified individual in the position, the County then decided to transfer Deleon into the position without his consent or approval.
Deleon did not receive a raise, and as a result of his working environment, developed bronchitis, a cough, sinus headaches, and would blow soot out of his nostrils due to inhaling the fumes in his area. Because of his health conditions and stress he experienced Deleon was off work for eight months on leave. When he was approved to return to work, the County had already terminated him.
In deciding whether Deleon experienced a materially adverse employment action, the Court explained that common examples of adverse actions are a change in salary, benefits, title, or work hours, but whether an action is truly adverse depends on the circumstances in the individual case. Although, “[a] ‘mere inconvenience or alteration of job responsibilities’ is not enough to constitute an adverse employment action, if a reasonable person would find an action to be objectively intolerable, then the employer action could be found to be materially adverse.”
The moral to be taken from Deleon’s case, is that if you think your employer has reduced your pay, demoted you to a lower position, reduced your wages, changed your shift or hours, or diminished your responsibilities at work, and you suspect that this decision was made as a result of unlawful discrimination you may have a claim.
If you have been fired, discriminated against based on your race, national origin, gender, age or disability; or denied wages; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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