Employer Retaliation, Part 3: “Adverse Action” That Could Support a Retaliation Claim Can Take Many Forms Beyond Termination
The essence of an employee retaliation claim is an employer’s act or decision to punish, strike back, hurt, burden, or otherwise cause the employee to feel the heat for engaging in protected activity for which the employer takes umbrage. There can be no claim for prohibited retaliation without a retaliatory and “adverse” action taken against the targeted worker. Termination in response to an employee’s engagement in protected activity is the most obvious and least subtle type of adverse action, but it is only one of many moves by an employer that can support a cause of action for retaliation.
Not every negative experience at work constitutes an “adverse action” for purposes of retaliation, regardless of how much it may upset the employee. However, employers who attempt to limit their exposure by trying to fly under the radar with their retaliation, especially acts outside the employment context, may find themselves unpleasantly surprised at how many actions a judge can categorize under the retaliation umbrella.
Federal Law: Adverse Action Not Limited to the Workplace
Both federal and Michigan anti-discrimination laws prohibit retaliation against an employee for engaging in protected activity. However, the definition of “adverse action” as an element of a claim is generally more expansive under Title VII of the Civil Rights Act of 1964 (Title VII) and related federal statutes such as the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) than under Michigan’s primary anti-discrimination law, the Elliott-Larsen Civil Rights Act (ELCRA).
In its unanimous 2006 decision in Burlington Northern & Santa Fe Railway Co. v. White, the U.S. Supreme Court clarified what constitutes an adverse action in retaliation cases arising under Title VII. The Court held that the term should be interpreted broadly, encompassing any employer action that “might well dissuade a reasonable worker from making or supporting a charge of discrimination.” Note that this is an objective standard rather than a subjective one. That is, whether a particular employee was actually deterred by an employer’s conduct is not the issue; it is whether a “reasonable worker” would be.
Importantly, the Court wrote, “The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” This was a significant shift from earlier interpretations that limited adverse action to decisions affecting the “terms and conditions” of employment, such as hiring, firing, or demotion. After Burlington Northern, actions outside of traditional employment decisions, such as filing false criminal complaints against an employee, can qualify as retaliatory if they would deter a reasonable employee from exercising their rights.
Examples of Adverse Actions Under Federal Law
In addition to termination, demotion, or suspension, other employer conduct that courts have found to be sufficiently adverse to support a retaliation claim under Title VII includes:
- Reduced hours or shift changes.
- Reassignment to less desirable duties.
- Harassment or ostracism.
- Negative performance evaluations or disciplinary write-ups based on false information.
- Denial of benefits or opportunities available to others.
Michigan Law: The Elliott-Larsen Civil Rights Act and Whistleblower Protections
Under ELCRA and Michigan’s Whistleblowers’ Protection Act, Michigan courts have traditionally defined adverse action somewhat more narrowly than federal courts, limiting it to acts that involve a “materially adverse change in the terms and conditions of employment.” In other words, the action must be more than trivial or subjective. Instead, it must have a tangible and harmful effect on the employee’s job.
However, not every unpleasant experience at work qualifies as retaliatory. For instance, minor slights, personality conflicts, or temporary inconveniences are not typically actionable. Courts have rejected claims based solely on disciplinary warnings or negative evaluations that did not result in tangible harm.
Since most, but not all, Michigan employers are subject to both federal and state anti-discrimination laws and their protections against retaliation, employers should err on the side of caution when considering an adverse action against an employee who has recently engaged in protected activity.
NEXT: What Is an “Adverse Employment Action”?