What Counts As an Adverse Employment Action in California?

In California, employers cannot legally take adverse employment actions against you for discriminatory or retaliatory reasons. But what is an adverse employment action? This term goes beyond basic firing and demotion decisions to include a wide range of negative actions that impact an employee’s job. 

D.Law explains more about adverse employment actions and provides examples of scenarios that commonly meet this definition. 

What Is an Adverse Employment Action?

Adverse employment actions refer to negative changes to an employee’s job terms or conditions. Common examples include termination, demotion, and denial of promotion.

California is an at-will state, which means employers can generally fire and demote workers at will, or for any reason, with a few main exceptions. Those exceptions include discrimination and retaliation. When an employer takes a negative action against an employee for discriminatory reasons or in retaliation for upholding their rights, this may be a violation of employment law and give rise to legal action. 

When Might You Need To Prove Adverse Employment Actions?

If you suspect your employer has discriminated against you based on a protected characteristic, such as your age, race, religion, or sexual orientation, you would generally need to prove that the discrimination led to an adverse employment action to seek damages. If their discriminatory behavior did not include adverse employment actions, it may not meet the legal definition of discrimination. 

Workplace retaliation claims also involve proving adverse employment actions. Retaliation occurs when an employer takes a negative action against you after you uphold your employment rights, such as by reporting their unlawful actions, asking for reasonable accommodations, taking leave under the FMLA, or performing another protected activity. In legal cases, courts consider whether an action would deter a reasonable employee from engaging in a protected activity.

Because adverse employment actions can take many forms, knowing what this behavior can look like is important to upholding your employment rights. 

Specific Examples of Adverse Employment Actions 

What counts as an adverse employment action? Many negative actions made by an employer can be labeled “adverse employment actions.” Review a few examples under these categories:

• Job standing: Negative changes to your position or reputation in the company, which may include demotion, wrongful termination, being moved to a less desirable shift or assignment, negative performance reviews, exclusion from projects, and more
• Pay: Any actions that negatively affect your payment, such as reducing your hours, demoting you, lowering your salary, denying you bonuses that you otherwise would have earned, laying you off, terminating your employment, not paying overtime (which is unlawful in itself), or denying or rescinding your benefits
• Career advancement: Actions that negatively impact your ability to advance in your career, such as refusing to hire, train, or promote you, or actions like blacklisting and sabotage
• Work environment: Adverse employment actions can also be more indirect, such as actions that create a hostile work environment. This might include physical or verbal harassment, being moved to more difficult assignments, being denied breaks, accommodations, or assistance, or being given an excessive workload compared to other workers. 

Many of these actions are legal in isolation. Your employer can change your work hours, demote you, and fire you at will under California law in many scenarios. But when these adverse employment actions are accompanied by discrimination or retaliation, they may violate your employment rights. 

Building a Case Around Adverse Employment Actions 

Whether you have experienced discriminatory treatment or workplace retaliation, proving adverse employment actions is just one step in building a case against your employer. To establish employment discrimination, you need to prove these four elements:

• You are a member of a protected class or have a protected characteristic.
• You experienced adverse employment action. 
• You met your employer’s expectations for employment at the time of the adverse action. 
• You experienced different treatment from other employees facing similar situations outside your protected class. 

To prove workplace retaliation, you need to establish these four elements:

• You participated in a protected activity. 
• Your employer knew about your participation in the protected activity. 
• You faced an adverse employment action. 
• The protected activity contributed to the adverse action. 

Gathering evidence can help you support each of the necessary criteria in your case. Compelling evidence might include:

• Records of communications with your employer where they provided reasoning for taking the adverse action, such as relating to your membership in a protected class or a protected action you took. 
• Witness testimonies from those who saw the adverse action or heard discriminatory/retaliatory comments
• Copies of performance reviews and other documentation relating to the adverse action
• References to other workers in similar positions who did not experience the adverse action 
• Examples of actions that have created a toxic workplace, such as comments from managers or colleagues

You might benefit from working with an employment lawyer to assess the evidence available in your case. 

Legal Options After Experiencing an Adverse Employment Action for Discriminatory or Retaliatory Reasons 

Now that you know what is considered an adverse employment action, you can better assess whether you experienced workplace discrimination or retaliation. If you suspect your employer may have violated your rights, you have a few options for how to proceed.

You may start by bringing the issue to your human resources department and filing a report. If your HR department fails to rectify the issue, you might submit a claim with the Equal Employment Opportunity Commission (EEOC) or the California Civil Rights Department (CRD). Both organizations hear cases of workplace discrimination and retaliation and can inform you about your rights and options moving forward. 

The organization you submit a claim through will investigate the case and may choose to take legal action on your behalf. Alternatively, it may issue you a “right-to-sue letter,” allowing you to take legal action against your employer. 

Seek Legal Assistance From D.Law 

Adverse employment actions are one piece in the puzzle of proving retaliation or discrimination. If you experienced an adverse employment action that you believe violated your rights, reach out to D.Law to discuss your options with an employment attorney. 

Call us today at 818-275-5799 to schedule a consultation.