Court finds job reassignment is adverse action for purposes of race and retaliation claims
Tart v. Illinois Power Co., No. 03-2236 (7th Cir. 4/26/04) is another case on the frequently litigated issue of what constitutes an adverse employment action.
Not every employment action is sufficiently serious to permit recovery, even if there is a prohibited motive. Here the context was whether reassignment to a different position was a sufficient change to permit recovery for race discrimination and retaliation, upon proof of the prohibited motive.
Following a jury verdict for the plaintiff, the Seventh Circuit held that the reassignment was sufficiently adverse where before the reassignment, one of the plaintiffs “worked independently, mostly indoors, repairing gas meters and other equipment, working with computers, maintaining the building’s electrical and mechanical systems, and sometimes answering customer service calls on a one-man truck,” and the other plaintiff “worked independently on a one-man truck, which involved customer contact, skilled work repairing gas leaks both inside and outside of homes, and computer access.”
In contrast, after the reassignment, they both “worked outdoors in winter digging ditches under the supervision of Caucasian workers they themselves had previously trained. Gone was the independence, the largely indoors environment, the computer access, the skilled labor involved in fixing equipment and repairing gas leaks, and the customer contact. Instead, they were now construction laborers, digging ditches, under the hyper-vigilant eye of a manager who told their new supervisors to work them until they quit.”
The court listed three categories of cases where materially adverse employment actions have been found: “1) cases in which the employee’s compensation, benefits or other financial terms of employment are diminished, including cases where employment is terminated; 2) cases in which a nominally lateral transfer without a change in financial terms significantly reduces the employee’s career prospects by preventing him from using the skills in which he is trained and experienced; and 3) “[c]ases in which the employee is not moved to a different job or the skill requirements of his present job altered, but the conditions in which he works are changed in a way that subjects him to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in his workplace environment—an alteration that can fairly be characterized as objectively creating a hardship, the classic case being that of theemployee whose desk is moved into a closet.”
Although the employer’s attempt to downplay the significance of the reassignment was unsuccessful here, it is important to remember in defending discrimination and retaliation cases, as well as harassment cases, that not every adverse action viewed by an employee as actionable — and described in the most dramatic terms in the complaint — is in fact actionable.
In the case of harassment, not every adverse action alleged by a plaintiff is grounds for avoiding the Faragher/Ellerth affirmative defense which is unavailable in the event of a tangible employment action engaged in by a supervisor.
