What is an “Adverse Employment Action”?

Not every action taken by an employer against an employee is actionable under the anti-discrimination laws, even if the action is tied to a so-called protected characteristic.

The dividing line between actionable and non-actionable conduct – for claims of retaliation or status-based discrimination – is the presence, or absence, of an “adverse employment action.” As one court aptly explained, “not everything that makes an employee unhappy” is actionable. Pimentel v. City of New York, 2002 WL 977535(S.D.N.Y. May 14, 2002), aff’d, 74 Fed.Appx. 146 (2d Cir.2003).

“To make out a prima facie case [of discrimination or retaliation], a plaintiff must demonstrate, inter alia, that she suffered an adverse employment action. [A]n adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities. [T]ermination 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, or other indices unique to a particular situation are all examples of materially adverse changes.” Lawson v. Avis Budget Car Rental, LLC, No. 15-CV-01510 (GBD), 2016 WL 3919653 (S.D.N.Y. July 12, 2016).

Courts have clarified that “[t]he definition of adverse employment action in the retaliation context is not limited to discrimination actions that affect the terms and conditions of employment, but rather covers harms that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Imperato v. Otsego Cty. Sheriff’s Dep’t, No. 13-cv-1594, 2016 WL 1466545 (N.D.N.Y. Apr. 14, 2016); see also Carpenter v. City of Mount Vernon, No. 15-CV-0661 (NSR), 2016 WL 4059353, at *8 (S.D.N.Y. July 27, 2016).

In Nakis v. Potter, 422 F. Supp. 2d 398, 420 (S.D.N.Y. 2006), the court explained that there are no bright-line rules for determining which employment actions meet the “adverse” threshold. There, for example, the court held that the denial of plaintiff’s request to retake an Excel class was sufficiently “adverse” for plaintiff’s Title VII discrimination claim, since it appeared to “bear on plaintiff’s opportunities for professional growth and career advancement.”

More recently, in Frazier v. City of New York Dep’t of Correction, No. 14-CV-1224 (KAM)(PK), 2016 WL 4444775 (E.D.N.Y. Aug. 23, 2016), the court held that a disciplinary meeting and a suggestion that plaintiff be “written up” did not meet the standard for purposes of plaintiff’s (proposed) Title VII retaliation claim, since these incidents “were informal reprimands without any accompanying allegations that they caused injury or harm to plaintiff.”

“The elements of a prima facie case of retaliation under the [NYC Human Rights Law] are identical [to those under Title VII], except that the plaintiff need not prove any ‘adverse’ employment action; instead, he must prove that something happened that would be reasonably likely to deter a person from engaging in protected activity.” Nieblas-Love v. New York City Hous. Auth., No. 14-CV-5444 (JMF), 2016 WL 796845, at *6 (S.D.N.Y. Feb. 26, 2016).

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