Retaliation Attorney: The real key legal question here is where the alleged adverse action would make it less likely for another person to similarly complain. This is a different and lesser type of conduct that is needed to prove an employment discrimination case. For a discrimination claim, adverse employment actions are defined as those that “materially affect the compensation, terms, conditions, or privileges of employment,” which would obviously include refusal to hire, demotion and termination. The definition of adverse action for a retaliation claim is broader than the adverse employment action needed for a discrimination claim. An adverse action for retaliation claims is an action that “is reasonably likely to deter employees from engaging in protected activity,” which also include demotions and terminations, but are just not limited to those employment actions. This distinction was addressed by the United States Supreme Court in Burlington N. & Santa Fe Ry. Co. v. White, where the Court held:Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. “Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 292 (1960). Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act’s primary objective depends.
For these reasons, we conclude that Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm …
The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. … a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Rochon, 438 F. 3d, at 1219 (quoting Washington, 420 F. 3d, at 662).
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80 (1998); see Faragher, 524 U. S., at 788 (judicial standards for sexual harassment must “filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing’”). An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. …
We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. … A schedule change in an employee’s work schedule may make little difference to many workers but may matter enormously to a young mother with school-age children. Cf., e.g., Washington, supra, at 662 (finding flex-time schedule critical to an employee with disabled child). A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial in some situations is material in others.” Washington, supra, at 661.
Want some examples? A manager “assigning more, or more burdensome, work responsibilities, is an adverse employment action.” Davis v. Team Elec. Co. Some courts have held that transferring job duties, or actions that may negatively impact the complaining employee’s compensation can constitute adverse actions. Fonseca v. Sysco Food Servs. of Ariz., Inc.; Yartzoff v. Thomas. Adverse actions can occur when the protected employee is excluded from meetings, seminars, and positions that would have made the employee eligible for salary increases. Strother v. S. Cal. Permanente Med. Group. Likewise, undeserved low-performance reviews or scores can be an adverse action. Yartzoff v. Thomas.
But, remember that not everything that a boss, manager or supervisor does after you complain or oppose discrimination will give rise to a viable employment claim for retaliation. For example, if your boss doesn’t stop by your office to say good morning every day anymore or you think that a supervisor is making faces at you, our lawyers would have a tough time proving a case of retaliation. However, if your boss takes you off the rotation for overtime opportunities or moves you to the third shift, give our attorneys a call.