Dive Brief:
- A federal appeals court has declined to revive the lawsuit of a White Maryland prison guard who alleged that her employer, Wicomico County, retaliated against her for engaging in protected activity and discriminated against her on the basis of her race and gender ((Passwaters v. Wicomico County, No. 19-2462 (4th Cir., Sept. 10, 2020)).
- To support her claims, the guard pointed to reassignments and discipline but a federal district court said the actions didn't meet the required standard for an "adverse employment action."
- On appeal, the 4th U.S. Circuit Court of Appeals agreed, citing an earlier case that "[t]he mere fact that a new job assignment is less appealing to the employee ... does not constitute adverse employment action."
Dive Insight:
To succeed on a discrimination claim, an employee generally needs to show that he or she suffered an adverse employment action. An adverse employment action "is a discriminatory act that adversely affects the terms, conditions, or benefits of the plaintiff’s employment," the Passwaters court said.
Courts have found that transfers, schedule changes and other similar actions amounted to adverse employment actions. However, such actions, including a job reassignment, may constitute an "adverse employment action" only if the action is accompanied by a "decrease in compensation, job title, level of responsibility, or opportunity for promotion," the court explained.
The district court noted that although the plaintiff characterized her transfers as disciplinary or adverse, she retained the same job title and was responsible for carrying out the core duties of her rank. The court also noted that she did not allege that her reassignments to various other posts resulted in a decrease in pay, elimination of promotion opportunities or other harm. The 11th Circuit previously held, for example, that the terms and conditions of a worker’s employment were adversely affected when an HR professional was transferred to a job on the floor of a chicken processing plant.
Similarly, the Passwaters court explained that a written warning can qualify as an adverse employment action if it produces "actual consequences akin to demotion or termination." In this instance there was no evidence that the written warning could be viewed as an adverse employment action because it did not correspond to a decrease in pay or other harm.
Employment experts recommend that employers ensure policies and procedures are evenly implemented and suggest that HR may need to get involved in situations where an employer is considering disciplining an employee who has recently engaged in a protected activity.