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Defining adverse employment action

As a California employee, you probably already know that your employer cannot fire you for reporting workplace discrimination to your supervisors, your company’s management team or the Equal Employment Opportunity Commission. But did you know that your employer likewise cannot take any adverse employment action against you whatsoever?

An adverse employment action is any act on your employer’s part that inhibits you or any of your co-workers from reporting discrimination. The prohibited action can take place before you file a complaint in an effort to prevent your doing so, or it can take place after you lodge your complaint in an effort to retaliate against you in other ways short of termination.

By the way, termination itself is an adverse employment action. Not surprisingly, however, others come in many forms, including the following:

  • Relieving you of your supervisory responsibilities
  • Reassigning your duties or threatening to do so
  • Reducing your salary or wages or threatening to do so
  • Excessively scrutinizing the work you perform
  • Threatening you or your family member(s) with deportation or other immigration actions
  • Disparaging or criticizing you to others, especially in the media

Additional examples

Per the U.S. Supreme Court, “adverse employment action” is an objective standard by which to judge the things your employer does to or against you, but which action(s) rise(s) to the level of an adverse employment action is fact-dependent on a case-by-case basis. For instance, the Justices held that all of the following were adverse employment actions in the cases in which they arose and therefore could be in your case as well:

  • Relocating you to an unfavorable job site
  • Assigning you a disproportionate amount of work in comparison to your co-workers with the same job description and/or pay grade
  • Surveilling you while you are at work
  • Failing to include you in lunches for your team members
  • Using abusive scheduling practices against you
  • Undermining or sabotaging your work

If you believe your employer is taking adverse employment actions against you, your best strategy is to document the abusive behavior and seek legal advice.

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