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Retaliation: What is an Adverse Action?
It has become an increasingly common fact pattern: An employer discriminates against an employee, for example, because of her gender. She files a claim of discrimination against the employer with the Equal Employment Opportunity Commission (EEOC). In a matter of days, the employer finds out about her charges and decides to make her work life miserable. This might create a straightforward claim for unlawful retaliation, that is if the employer's actions made her life 'miserable enough.' The question of what is 'miserable enough' has divided the courts, and thus there may not be a clear answer to questions on adverse employment actions for employers or employees.
As a threshold matter, no employee can sustain a claim for retaliatory discrimination without proving that the employer took an adverse employment action against him or her, but how adverse must an adverse action be? Certainly, some adverse actions will be 'no brainers,' such as firing. But what if, in response to the employee's charge before the EEOC, the employer docks the employee's salary? Or reassigns the employee to a less prestigious job? Or moves him or her from the fancy corner office to a room in the basement facing the boiler?
As common as retaliation claims may be, it has taken over 40 years since the passage of the Civil Rights Act of 1964 for courts to answer the question of what exactly counts as retaliation. At last, the Supreme Court will be weighing in on this question in the case of Burlington Northern and Sante Fe Railway Co. v. White, which was argued on April 17, 2006, and in which a decision may be issued by the end of June.
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