Does a negative job evaluation or written reprimand establish an adverse action?

Introduction

There are many federal laws that protect employees from being retaliated against for engaging in protected activity. In fact, Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981, the Americans with Disabilities Act of 1990 (“ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Family Medical Leave Act of 1993 (“FMLA”), all permit employees to bring a cause of action in federal court for retaliation. There are other less prevalent federal laws that also protect employees from retaliation. While each law may require slightly different elements to prove a claim, generally speaking, retaliation claims have three (3) main elements at the initial pleading stage.

What is retaliation?

First, to establish a retaliation claim under one of the above-mentioned laws, the employee must demonstrate that he or she engaged in protected activity. Engaging in protected activity can look like filing an EEOC Charge, filing for FMLA leave, or filing an internal complaint with Human Resources, specifically alleging discrimination based on a protected characteristic, such as race or gender. While this list is not exhaustive, it gives employees an idea about what they must do in order to be protected against retaliation from their employers.

Second, employees must be subjected to an adverse employment action by their employer in order to successfully bring a retaliation claim. The common adverse employment actions include, but are not limited to, termination, demotions, cut in hours, or cut in pay. Although not exhaustive, these are the tangible adverse employment actions that typically come to mind when thinking about retaliation. However, what about adverse employment actions the employer might take that are less obvious or may not have a direct impact on an employee’s employment? The next section of this blog will address that question.

Lastly, after the employee has established that they engaged in protected activity and were subjected to an adverse employment action, the employee must establish that those two events were causally connected. This may seem hard to prove, but an employee can establish causation by demonstrating short timing between the protected activity and adverse employment action, by demonstrating that the employer acted outside of its standard practices in issuing the adverse employment action, or by demonstrating that the employer treated the employee differently than another employee who did not engaged in a protected activity.

Can a negative job evaluation or written reprimand constitute an adverse employment action?

In the Eleventh Circuit, an undeserved negative job evaluation or written reprimand may be actionable in a retaliation claim when it is viewed with other actions under a “totality of the circumstances” approach. However, standing alone, a negative performance evaluation or disciplinary warning will likely not satisfy the adverse action element of a retaliation claim. The Eleventh Circuit has implemented a “threshold level of substantiality” for actions that fall short of “ultimate” employment decisions such as undeserved negative job evaluations, demotions, disadvantageous transfers, and tolerance of harassment. Notably, courts have found that negative performance evaluations and warnings can be materially adverse when it affects the employee’s prospects for a merit pay increase or career advancement.

If an employer issues a negative performance review or written reprimand after an employee has engaged in protected activity, the employer’s conduct will likely not constitute an adverse employment action for purposes of a retaliation claim, if that is the only adverse action taken. However, if the employer demotes the employee while issuing a disciplinary action, then the employee can likely establish a materially adverse employment action for purposes of a retaliation claim.

If you feel your rights have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel Allen & Sinor. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you