Tuesday, April 4, 2017

The adverse action standard for retaliation is low (but not this low)

The legal standard for an “adverse action” to support a claim for workplace retaliation is pretty low. How low? According to the Supreme Court, an adverse action sufficient to support a claim for retaliation is any action that would dissuade a reasonable worker from complaining about discrimination.

But, is does it reach this low? In Bien-Aime v. Equity Residential (S.D.N.Y. 2/22/17), a federal court concluded that two managers’ general rudeness towards the plaintiff, which started only after the plaintiff filed a civil rights complaint, stood as a sufficient adverse action to support his retaliation claim.

What kind of rudeness? I’ll let the court explain:
Eichinger “stopped saying good morning” to him; Sec “totally change[d]” in the way he spoke to him and spoke to him without a “warm welcome” in his voice; Sec continually monitored him at work; Sec asked him about two instances in which he incurred employee overtime without prior approval; and Sec and Eichinger talked to him like he was a criminal.
Yup, they no longer said good morning, and spoke to him in less friendly manner. While the court conceded this was “a close question,” it believed a jury, and not a judge, should decide whether this change in demeanor qualified as an adverse action. 

With all due respect to this court, the legal standard for an adverse action, is not mere adversity, but material adversity. As SCOTUS correctly explained:
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience…. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….
Someone convince me that the acts of these managers as alleged in Bien-Aime are anything other than “petty slights, minor annoyances, and simple lack of good manners.” The floor is yours.

n.1. Thanks to Matt Austin Labor Law for tipping me off to this case.

n.2. The irony of the fact that the plaintiff’s surname translates to “well liked” is not lost on me.