Not All Bad Employer Acts Create A Discrimination Claim

In yesterday’s blog, we talked about how Abraham Freud lost most of his religious discrimination claims because he waited too long to file his claims. (Read about it here). Today, our employment lawyers are taking a closer look at the claims that remained.

What is an adverse employment action in a case under Title VII?

Title VII of the Civil Rights Act of 1964 prohibits an employer from engaging in race/color, gender, gender identity, sexual orientation, national origin, and religious discrimination. Likewise, Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act of 1967 (“ADEA”) make disability discrimination and age discrimination unlawful in the workplace and follow the same burdens of proof.

In a discrimination claim under Title VII, an adverse employment action is a key element of the employee’s case. To establish a prima facie case of discrimination, the employee must show that they suffered an adverse employment action and that it was because of their protected characteristic (such as race, color, religion, sex, or national origin). The adverse employment action must be significant enough to constitute a change in the terms or conditions of the employee’s employment. These may include:

1. Failure to hire, promote, or transfer an employee;
2. Demotion or reduction in pay;
3. Termination of employment;
4. Denial of benefits or leave;
5. Harassment or creation of a hostile work environment;
6. Assigning an employee to a less desirable job or shift; and/or
7. Reducing an employee’s job responsibilities.

Not every action taken by an employer that negatively affects an employee’s job is considered an adverse employment action. Here are some examples of actions that are generally not considered adverse employment actions:

1. Trivial or minor changes to an employee’s job responsibilities or work environment that do not result in a material change in the terms and conditions of employment;
2. Constructive criticism or negative feedback that is not accompanied by a tangible employment action, such as a demotion or reduction in pay;
3. Isolated or sporadic incidents of verbal abuse, unless they are severe and pervasive enough to create a hostile work environment;
4. Requiring an employee to comply with workplace rules or policies that apply to all employees and are not discriminatory;
5. Refusing to grant a request for a minor change in work schedule or job duties that does not materially alter the employee’s job;
6. Negative performance evaluations that are not accompanied by a material change in the employee’s job status; and
7. Actions that are taken for legitimate, non-discriminatory reasons, such as the employer’s financial situation or business needs.

It’s important to note that whether an action constitutes an adverse employment action is a fact-specific inquiry that depends on the particular circumstances of each case. A skilled employment law attorney at Spitz, The Employee’s Law Firm can help you determine whether an action taken by your employer is an adverse employment action under the law.

In Freud v. New York City Department of Education, No. 22-879, 2023 WL 3103588 (2d Cir. Apr. 27, 2023), the United States Court of Appeals for the Second Circuit held that Freud could not meet this burden:

For purposes of a discrimination claim under Title VII, “an adverse employment action” is one that “materially … change[s] … the terms and conditions of employment” and “is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Vega, 801 F.3d at 85. We have identified several “[e]xamples of materially adverse changes,” which “include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities,” and “the assignment of a disproportionately heavy workload.” Id. (internal quotation marks omitted).

Freud alleges no such changes; instead, he protests, among other things, that Defendants assigned him to “a very difficult class for summer school,” App’x at 84; placed him in a classroom on a floor without a restroom, see id. at 86; and required him to work with – in his view – “very low[-]functioning and high[-]maintenance students,” id. But these alleged actions constituted “mere inconvenience[s] or … alteration[s] of job responsibilities,” and did not materially alter “the terms and conditions of [Freud’s] employment.” Vega, 801 F.3d at 85. Although Freud argues on appeal that he had a “disproportionately heavy workload,” Freud Br. at 35, the complaint only alleges that he was assigned responsibilities within his role as a special-education teacher and states nothing to suggest that his workload was distinctively onerous compared to those of his colleagues. Because Freud has failed to plausibly allege an adverse employment action, the district court properly dismissed his discrimination claims.

Id. at *2.

A little common sense and good legal advice may have stopped Freud from making some of these assertions. For example, other teachers clearly worked on the same floor without a bathroom. Unless the employer overtly grouped all the Orthodox Jewish teachers on the floor without a bathroom, it is impossible to show disparate treatment. Moreover, given that Freud only offered his opinions regarding the difficulty of a class and functioning level of the class, there is no real way to compare this to other teachers classes.

Sometimes, the best attorneys are the ones that help you avoid bringing bad claims.

Best Wrongfully Fired Lawyer Blogs on Point:

• Wrongful Termination: How Do I Prove That I Am Qualified For The Job?
• Is A Work Transfer Considered An Adverse Employment Action?
• What Constitutes An Adverse Employment Action Under Title VII?
• What Is An Adverse Employment Action? Not Hiring, Firing, Demotion, And Yes, Also Non-Renewal

How do I hire an employment law attorney?

If you have been wrongfully fired or discriminated against on your job based on race, national origin, gender, age, religion, disability, or other protected class, make sure that you find a law firm that focuses on employee’s rights. Much like you don’t want a general practice doctor or even an orthopedic operating on your brain, you don’t want to hire an attorney that just kind of dabbles in employment law. Employment laws are complex. You best option is 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; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

Disclaimer:

This employment discrimination and wrongful termination law website is an advertisement. The religious discrimination, race discrimination, gender harassment, and employee’s rights information written in this blog and provided throughout this EEOC and Title VII website are to give you general information only and not to offer direct legal advice. If you have been wrongly fired, demoted, harassed or discriminated against, it would be best for you to contact our top attorneys to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.