Discrimination and retaliation claims require a plaintiff to prove that they suffered an “adverse employment action.” Under state and federal law, adverse employment actions encompass much more than termination or demotion. Rather, adverse employment actions include any employer conduct that materially and negatively affects the terms, conditions, or privileges of employment. This broad interpretation ensures robust protection for employees against discrimination and retaliation.
Defining Adverse Employment Action
The California Supreme Court in Yanowitz v. L’Oreal USA, Inc. clarified that adverse employment actions are not limited to ultimate employment decisions, like being fired. Instead, they encompass a range of employer behaviors that, when considered collectively, materially affect an employee’s job performance or prospects for advancement.
“There is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” Yanowitz v. L’Oreal USA Inc., 36 Cal.4th 1028, 1055-56 (Cal. 2005).
These claims should take into account “the unique circumstances of the affected employee as well as the workplace context of the claim.” Whitehall v. County of San Bernardino, 17 Cal.App.5th 352, 366–367 (2017). “The ‘materiality’ test of adverse employment action . . . looks to ‘the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,’ and the test ‘must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace . . . . ’” Patten v. Grant Joint Union High School Dist., 134 Cal. App. 4th 1378, 1389 (2005); Wysinger v. Automobile Club of Southern California, 157 Cal. App. 4th 413, 424 (2007) (“[Defendant’s] actions had a substantial and material impact on the conditions of employment. . . . There was [] a pattern of conduct, the totality of which constitutes an adverse employment action. This includes undeserved negative job reviews, reductions in his staff, ignoring his health concerns and acts which caused him substantial psychological harm”).
Examples of Adverse Employment Actions
Thus, state and federal courts have recognized various actions as adverse employment actions, including but not limited to:
- Termination or Firing: The most straightforward example.
- Demotion: A reduction in rank or responsibility.
- Pay Reduction: Lowering an employee’s salary or benefits.
- Denial of Promotion: Refusing to promote an employee without a legitimate reason.
- Negative Performance Evaluations: Unjustified poor reviews that hinder career progression.
- Job Reassignments: Transfers to less desirable positions without cause.
- Constructive Discharge: Creating intolerable working conditions that force an employee to resign.
- Exclusion from Meetings: Ostracizing an employee from important discussions or decision-making processes.
- Increased Surveillance or Scrutiny: Subjecting an employee to excessive monitoring.
- Unjustified Placement on Administrative Leave: Especially when it affects the employee’s reputation or career prospects.
However, it’s important to note that minor or trivial actions that only upset an employee do not constitute adverse employment actions.
Case Law Illustrations
- Yanowitz v. L’Oreal USA, Inc.: The court held that a series of actions, including criticism and increased scrutiny, could collectively constitute an adverse employment action.
- Patten v. Grant Joint Union High School District: A lateral transfer without a change in pay or benefits was deemed an adverse employment action due to its negative impact on the employee’s career.
- Dahlia v. Rodriguez: The Ninth Circuit found that placing an employee on paid administrative leave could be an adverse employment action if it deters the employee from engaging in protected activities.
- Juarez v. AutoZone Stores, Inc.: A female employee was demoted after announcing her pregnancy and subjected to increased scrutiny, leading to a $185 million verdict for pregnancy discrimination and retaliation.
- Chopourian v. Catholic Healthcare West: An employee faced retaliation after reporting unsafe working conditions, resulting in a $168 million verdict for hostile work environment and retaliation.
Understanding the Nuances
Determining whether an action qualifies as adverse requires a holistic view of the circumstances. For instance, while a single negative performance review might not be adverse, a pattern of unjustified negative evaluations could be. Similarly, exclusion from meetings might be trivial in isolation but could be adverse if it significantly impairs an employee’s ability to perform their job.
Conclusion
Adverse employment actions in California come in many forms, and employers are skilled at obfuscating and pretending changes in your work are not “adverse.” You may have a case, whether it’s a demotion, a missed promotion, an office move meant to humiliate, or being pushed out of key meetings, if it materially harms your career or working conditions.
At King & Siegel LLP, we fight for employees facing exactly these tactics — and we know how to prove what employers try to hide. We’ll give you a clear, honest assessment of your situation — no false promises, no sugar-coating. If you have a case, we’ll fight to hold your employer accountable.
Don’t guess. Don’t wait. Talk to a firm that tells the truth — and wins.
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Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.