Best Ohio Employment Discrimination Attorney Answer: Does a suspension with pay constitute an adverse employment action? What are my options if I am discriminatorily suspended with pay? How do I sue my employer for race or gender discrimination?
In Ohio and federal courts, to prevail on an employment discrimination claim, including race/color, religion, gender/sex, pregnancy, national origin, age, and disability discrimination, the employee must demonstrate that he or she suffered what is known as an “adverse employment action.” But one of the questions we as employment law attorneys get asked a lot is what exactly constitutes an adverse employment action? (See What Is An Adverse Employment Action Under Ohio Law?; What Is An Adverse Employment Action? Not Hiring, Firing, Demotion, And Yes, Also Non-Renewal; and Attorney Top Answer: What Is An Adverse Employment Action?)
In Kocsis v. Multi-Care Management Inc., the U.S. Sixth Circuit Court of Appeals (Ohio) held that an employee claiming employment discrimination must show that he or she suffered “a materially adverse change in the terms of her employment.”
Obviously termination, demotion or even suspension without pay would constitute an adverse employment action. But what happens if an employee is discriminatorily suspended with pay? Is being away from work but not losing any pay as a result an adverse employment action? The law is less than 100 percent clear on this issue, but a recent Third Circuit Court of Appeals case provided some guidance on how to handle paid suspensions in discrimination cases.
In Jones v. SEPTA, the Third Circuit was faced with the exact question of whether an employee who was placed on paid suspension could bring a claim of sexual harassment and gender discrimination. In that case, Michelle Jones was placed on paid suspension and eventually fired in 2011 by her employer, Southeastern Pennsylvania Transportation Authority. While there is no doubt that the termination constituted an adverse employment action, the Court decided to also posit on whether or not Jones’ paid suspension would be considered an adverse employment action under Title VII.
The Court held in Jones that a paid suspension does not constitute an adverse employment action. The Court cited other circuit courts that have reached similar conclusions and determined that “this chorus is on pitch.” However, the Jones court did leave the question somewhat unanswered when they qualified their holding by stating that a paid suspension “typically” does not meet the standards of an adverse employment action. The Court also held that the ruling only applies to discrimination cases under Title VII, and does not reach into retaliation cases under Title VII, which only requires what the law calls an adverse action (note the word employment is missing). Adverse actions for retaliation cases only require conduct by an employer that would discourage an employee from taking that action, which can even be name calling or giving a driver the stinky truck, for example. Adverse actions can be not giving you progressive discipline steps typically given to other employees or not investigating alleged complaints against you before giving you a write up.
Further, a situation in which In 2004, the Sixth Circuit (the federal circuit court that holds jurisdiction over federal cases in Ohio), in Smith v. City of Salem, Ohio, held that common “[e]xamples 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.”
Later that same year, the Sixth Circuit, relying on Kocsis’ definition of “adverse employment action,” held that the suspension of an employee without pay, followed thirty-seven days later by a reinstatement with back pay, and transferring an employee from her forklift operator job to a standard track laborer job both constituted adverse employment actions in White v. Burlington Northern & Santa Fe R. Co.. Thus, a situation where someone is put on unpaid suspension and then later paid back for the time on suspension could be considered an adverse employment action.
No matter if you are placed on paid or unpaid suspension, and you think that decision is discrimination, you should absolutely contact an experienced employment law lawyers to help guide you through the sometimes murky law surrounding employment discrimination.
If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; 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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