Unlawful Retaliation: Adverse Employment Action — LAW OFFICE OF GREGORY A. WILLIAMS

Under Washington Law Against Discrimination (WLAD), RCW 49.60, what is an adverse employment action when pursuing a claim of unlawful retaliation? Here’s my point of view.

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UNLAWFUL RETALIATION: THE PRIMA FACIE CASE

“To establish a prima facie case* of retaliation [using the McDonnell Douglas ‘evidentiary burden-shifting’ framework*] an employee must show three things:

(1) the employee took a statutorily protected action,

(2) the employee suffered an adverse employment action, and

(3) a causal link between the employee’s protected activity and the adverse employment action.

Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018) (internal citations omitted) (emphasis, paragraphs, and hyperlinks added).

*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.

ELEMENT #2: ADVERSE EMPLOYMENT ACTION

The WA State Supreme Court, in majority, has not clearly defined the term “adverse employment action.” However, Federal law and the United States Supreme Court offer some useful guidance on the issue.

-Federal Law

The term “adverse employment action” is undefined under Title VII of the Civil Rights Act of 1964. Accordingly, “the question of what constitutes an adverse employment action has received significant attention from the federal courts, which have not reached a consensus on the issue.” Islamic Society of Fire Department Personnel v. City of New York, 205 F.Supp.2d 75, 82 (E.D.N.Y. 2002) (internal citation omitted).

“Some courts, such as the Fifth and Eighth Circuits, have held that an ‘adverse employment action’ relates only to ‘ultimate employment actions,’ such as hiring, firing, promotions and demotions.” Id. (internal citation and quotation marks omitted).

-Ninth Circuit

However, the Ninth Circuit has adopted the U.S. Equal Employment Opportunity Commission‘s broad definition which takes an “expansive view” of what may be considered an adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).

-U.S. Supreme Court

The U.S. Supreme Court confirmed the Ninth Circuit’s general approach to this question in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2409 (2006), and held that an adverse employment action must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of unlawful conduct by the employer.

CONCLUSION

Under the Washington Law Against Discrimination, the definition of “adverse employment action” can be derived from Ninth Circuit caselaw to mean an employment action that is harmful to the point that it could deter a reasonable employee “from making or supporting a charge or unlawful conduct by the employer.”

We invite you to read more of our blog articles concerning this topic:

Definition of Prima Facie Case*

Employment-Discrimination Hotlines & Unlawful Retaliation

The McDonnell Douglas Burden Shifting Framework*

The Prima Facie Case: Unlawful Retaliation

Top 3 Reasons Unlawful Retaliation Claims Fail

Top 3 Causation Standards: Unlawful Retaliation

Unlawful Retaliation: Adverse Employment Action

Unlawful Retaliation and the Prospective Employer

Unlawful Retaliation: The Actual-Knowledge Standard

Unlawful Retaliation: The Causal Link

Unlawful Retaliation: The Functionally-Similar Test

Unlawful Retaliation: Statutorily Protected Activity