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First and Seventh Circuit decisions illustrate the “adverse employment action” requirement in EEO cases

As a general rule, the EEO laws, such as Title VII (race, gender, religion, etc.) and the ADEA (age), do not allow a plaintiff to sue for the everyday “slings and arrows” they might suffer in the workplace (quoting Shakespeare’s Hamlet). Rather, the law requires an “adverse employment action.” The adverse employment action test requires the plaintiff to show material harm to the terms and conditions of their employment. That doesn’t always have to mean being fired or demoted. In retaliation cases, it can be anything a reasonable worker would find sufficient to chill them from reporting misconduct.

Two recent decisions by the First and Seventh Circuit illustrate the kinds of conduct that do not rise to the level of an adverse employment action.

In the First Circuit case, the plaintiff argued that each of the following, separately and together, was sufficient, but the court disagreed:

  • The plaintiff’s supervisor allegedly demonstrated anger and overreacted when the plaintiff went over his head.
  • The supervisor allegedly made a temporary change to the plaintiff’s schedule.
  • The supervisor allegedly told the plaintiff to pull down his pants when the plaintiff said he had a skin condition.
  • The supervisor and two coworkers allegedly called the plaintiff a “cry baby.”
  • When the plaintiff took a medical leave but did not provide the required medical documentation, his leave was converted to paid vacation.

In the Seventh Circuit case, that court held the following was insufficient to prove an adverse employment action:

  • The plaintiff’s request for medical leave was, allegedly, originally misclassified as paid sick leave not FMLA leave.
  • A psychological examination had, allegedly, been requested of him in circumstances where the evidence such a request was “not unusual” (the plaintiff was a police officer and the psychological exam was requested as part of his clearance to return to duty).
  • Approval of his request to work a secondary job had allegedly been delayed for three months.

As the First Circuit noted, the adverse employment action requirement may seem harsh, but it remains the well established threshold that a plaintiff must cross to warrant court litigation.

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side. See Medina-Rivera v. MVM, Inc., 713 F.3d 132, 138 (1st Cir. 2013) (quoting Turner v. Atl. Coast Line R.R. Co., 292 F.2d 586, 589 (5th Cir. 1961) (Wisdom, J.) (“[H]ard as our sympathies may pull us, our duty to maintain the integrity of the substantive law pulls harder.”)

Source: Freelain v. Village of Oak Park, case no. 16-4074 (7th Cir. 4/30/18); Sepulveda-Vargas v. Caribbean Restaurants, LLC, case no. 16-2451 (1st Cir. 4/30/18).

Second Circuit rejects EEOC’s expansive interpretation of Title VII’s “limit, segregate, or classify” clause

Title VII is the nation’s leading anti-discrimination law. Most Title VII cases involve its prohibition against discrimination on the basis of race, religion, sex, etc. Many involve its anti-retaliation provision. But, few involve a clause in Title VII that says employers may not “limit, segregate, or classify” employees based on race, color, religion, sex or national origin.

In this case the EEOC argued that the employer did just that when it alleged transferred the African-American sales manager from its retail store that served largely Hispanic customers.

The employer responded that, even if it had, the transfer did not hurt the sales manager; it did not cause an adverse employment action, like a cut in pay, demotion, termination, etc. The EEOC responded that it didn’t matter. The EEOC argued that any limitation, segregation or classification was prohibited, even if it caused no harm to the plaintiff.

The court rejected both arguments. The court agreed with the EEOC that an adverse employment action was not required, but it agreed with the employer that the EEOC had to prove the transfer in some way “deprived or even tended to deprive him of any employment opportunity or otherwise adversely affected his employment status” (emphasis in original).

Source: EEOC v. AutoZone, Inc., — F.3d —, case no. 15-3201 (6/20/17).