Determining what constitutes an “adverse employment action” is critical when an employee sues for retaliation and/or discrimination.  In order to be able to sustain a claim for either retaliation or discrimination, an employee must sufficiently prove that he/she suffered an adverse employment action.  This issue was recently addressed by the U.S. Ninth Circuit Court of Appeals in an unpublished decision that reiterates the legal standard for assessing whether an employment action is “adverse.” 

In this new case, Carl Woods had sued his employer, the University of Washington, and his supervisor and settled with an agreement that dismissed the case and completely released the University from all liability.  However, Woods later filed a second lawsuit against the University, making allegations of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, and a similar Washington state civil rights law. 

In this second lawsuit, Woods alleged that his supervisor retaliated against him for previously suing him in the first lawsuit.  Woods also made an allegation of sexual harassment against his supervisor for refusing to remedy acts of insubordination by one of Woods’ subordinates.  Finally, Woods alleged that the University discriminated against him when it gave him first a “formal counseling” and later a “final counseling.” 

The University and supervisor moved for partial summary judgment on the ground that Woods had failed to demonstrate sufficiently that the formal counseling and final counseling constituted “adverse employment” actions as defined by law.  In order for claims of retaliation or discrimination to survive, an employee must demonstrate that one or more adverse employment actions were taken for discriminatory or retaliatory reasons.  In other words, the plaintiff must prove that the actions taken were not for legitimate, non-discriminatory or non-retaliatory purposes. 

The University and supervisor prevailed on summary judgment and the Court of Appeals affirmed.  For an employee to support a claim of discrimination or retaliation, s/he must show that the employer took adverse action as a result of the protected activity.  The Ninth Circuit reiterated the legal standard for establishing an adverse employment action: the action to be “adverse” must negatively affect the employee’s compensation, workplace conditions, responsibilities, or status. 

Applying this standard, the Ninth Circuit held that the formal counseling and final counseling Woods received were not adverse employment actions because they did not affect Woods’ compensation, workplace conditions, responsibilities or status, even though the final counseling caused Woods to forfeit seniority for a period of time.  Also, the Ninth Circuit noted, even if the final counseling did amount to an adverse action, Woods failed to show discriminatory intent or that he was treated differently than similarly situated employees outside his protected class. 

We regularly advise public agencies on how to deal with employees with serious performance or behavior issues in the workplace.  We also defend agencies in state and federal court against lawsuits alleging discrimination or retaliation which were filed after the employer has taken employment actions to address legitimate performance or behavior issues.  In doing this work, we have watched agencies grapple with the issue of what steps to take where there is a concern that an employee may sue.  It is important that your agency document all supervisory decisions made to counsel or discipline employees having performance or behavior issues.  Taking action to try and correct performance or behavior is not unlawful so long as the action is not done for retaliatory or discriminatory purposes.  Proper documentation of all discussions related to an employee’s issues, and of all actions taken against the employee to try and correct or discipline performance or behavior, will help your agency defend itself in the event that the employee alleged that the actions were taken for discriminatory or retaliatory reasons.