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What is considered an adverse employment action in workplace discrimination cases?

Under Title VII of the Civil Rights Act of 1964 and other federal anti-discrimination statutes, it is unlawful for employers to take an adverse employment action against an employee based on that employee’s race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), age, national origin, or disability. Federal courts have routinely defined adverse employment action to mean a materially adverse change in the terms and conditions of the employee’s employment.  (Best Law Read: What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?). To be considered an adverse employment action, the employer’s conduct against the employee must be more disruptive than a mere inconvenience or slight alteration of job responsibilities, and “not everything that makes an employee unhappy is an actionable adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). To that end, adverse employment actions can commonly be found in firing, failing to promote, reassignment with significantly different responsibilities, a material loss of benefits or pay, and suspensions without pay, among other situations. (Best Law Read: What Is An Adverse Employment Action? Not Hiring, Firing, Demotion, And Yes, Also Non-Renewal).

Can I sue for discrimination or retaliation if my supervisor transferred me to a new department but I have the same title and base pay?

Best Employment Lawyer Answer: As is the case with most attorney response, the answer is that it depends on particular facts and circumstances of each particular case. Recently, the United States Court of Appeals for the Ninth Circuit in Smith v. WM Corp. Servs., Inc., No. 21-16103, 2022 WL 4285599, at *1 (9th Cir. Sept. 16, 2022) reversed the  United States District Court for the District of Arizona dismissal of a case and held that a transfer of an employee from one supervisor position to another can be an adverse employment action. In that case, Russell A. Smith was employed as an inside sales manager by WM Corporate Services in Phoenix, Arizona. As part of his job, Smith was responsible for supervising a team of employees on the eBusiness team. After being diagnosed with obstructive sleep apnea, Smith requested an accommodation under the Americans with Disabilities Act (“ADA”) that shifted his work hours. Smith’s supervisor approved his disability accommodation request but switched position from eBusiness to the SnapShot team. However, a different employee, who was not disabled, was allowed to work “roughly the same hours” and stay on the eBusiness team.

The District Court held that the transfer from the eBusiness team to the SnapShot team while maintaining the same title and base pay could not reasonably be viewed as an adverse employment action and dismissed the claim. However, the United States Court of Appeals for the Ninth Circuit reversed and pointed to prior United States Supreme Court precedent. Specifically, in Burlington N. & Santa Fe Ry. Co. v. White, the United States Supreme Court held: “To be sure, reassignment of job duties is not automatically actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’” 548 U.S. 53, 71, 126 S. Ct. 2405, 2417, 165 L. Ed. 2d 345 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 75, 118 S. Ct. 998, 1000, 140 L. Ed. 2d 201 (1998).

Applying this United States Supreme Court precedent to the facts and circumstances that Smith faced as an employee at WM, the Ninth Circuit Court of Appeals held that there were enough questions of fact that would allow reasonable jurors to disagree on whether the employer’s transfer of Smith amounted to an adverse employment action. Specifically, the Court held: “Smith testified that (1) the SnapShot team worked in fewer markets than the eBusiness team, (2) the SnapShot team was understaffed and undertrained compared to the eBusiness team, and (3) SnapShot supervisors historically received smaller commission payments than Smith did in his role on the eBusiness team.” Smith at *1.

Keep in mind that that the United States Court of Appeals for the Ninth Circuit did not say that this transfer of departments was in fact an adverse employment action. Rather, it held that the District Court could not decide this issue as a matter of law, and that instead, this question needs to be decided by a jury.

Have I suffered an adverse action on my job?

Best Employment Lawyer Answer: As you can see there are a lot of things that go into figuring out whether particular circumstances amount to an adverse employment action, and also that courts will not necessarily agree on what those particular facts and circumstances are. Certainly, if you have been wrongfully fired or terminated, that would constitute an adverse employment action. But if your boss, supervisor, manager or even the owner of the company where you were as taken any action against you based on your race, national origin, gender, age, religion, sexual orientation, gender identity, or disability, you need to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Cleveland, Columbus, Detroit, Toledo, Youngstown, Raleigh and Cincinnati to get employment discrimination help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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