My colleague, Jarad Lucan, returns today with a primer on what it takes to establish a “prima facie” case of discrimination — the bare minimum to get the case to be considered by a court. Today, we focus on the third element — the “adverse employment action”. What is that, you ask? Read on.
If an employee hopes to have any chance of succeeding on a discrimination claim, she must first be able to establish a prima facie case.
Generally, this means that an employee must establish that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subjected to an adverse employment action; and (4) the adverse action took place under circumstances permitting an inference of discrimination.
Given that there are so many protected classes recognized by state and federal law (including race, gender, religion, gender identity, disability, sexual orientation, and veterans status), establishing the first prong is not particularly difficult.
In fact, in many cases (except for disability cases) an employer may concede an employee’s protected status.
Likewise, an employee can usually establish the second prong with ease. After all, employers generally do not hire individuals who are not qualified for the position.
Where an employee is likely to run into difficulty is with the fourth prong. Unless an employer chooses to openly flout the anti-discrimination laws, there is rarely obvious proof of a discriminatory action.
Now, for those of you keeping tally, you may notice that I skipped over the third prong. This was not accidental. When an employee is terminated, suspended or not promotes, there is no question that she suffered an adverse employment action.
But what about when the employee suffers some other action short of the foregoing examples? Are there certain actions an employer can take that do not amount to an adverse action as the term is understood in employment discrimination parlance?
Two recent cases, one from a Superior Court and one from the Connecticut District Court, answer that question in the affirmative.
In Powell v. Connecticut Department of Mental Health and Addiction Services, a registered nurse who was terminated after she failed to take sufficient disciplinary action against a staff member who had violated a work rule by sleeping on the job. On the day she was terminated, the nurse’s supervisor sent an e-mail to the staff notifying them of her termination. The nurse grieved her termination under the collective bargaining agreement and was reinstated.
The nurse also filed a discrimination claim not based on her termination, but based on the e-mail sent announcing her termination. According to the nurse, the employer had never announced a termination in such a manner and typically did so at a staff meeting.
In granting DMHAS’ motion for summary judgment the Superior Court indicated that the e-mail announcement as opposed to an announcement at a staff meeting was not an adverse employment action. Such an action is not a significant change in employment status.
In Avino v. Stop & Shop Supermarket Co., LLC, an employee was suspended without pay after he contacted several managers, despite instructions not to do so, having called one of them a “puppet” and another a “liar.” The employee, however, never served the suspension, instead taking advantage of vacation and sick days and an extended leave of absence before voluntarily retiring.
According to the District Court, a suspension that is never served is not an adverse employment action. For support, the court also relied on a 2005 case out of Illinois that came to a similar conclusion.
For employers, defense of discrimination claims isn’t a one-size-fits-all proposition. Be sure to consult with your counsel about the best way to defend yourself even before a claim may be filed.