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Retaliation: What is an Adverse Action?

By Debra L. Raskin and Peter Basso

It has become an increasingly common fact pattern: An employer discriminates against an employee, for example, because of her gender. She files a claim of discrimination against the employer with the Equal Employment Opportunity Commission (EEOC). In a matter of days, the employer finds out about her charges and decides to make her work life miserable. This might create a straightforward claim for unlawful retaliation, that is if the employer's actions made her life 'miserable enough.' The question of what is 'miserable enough' has divided the courts, and thus there may not be a clear answer to questions on adverse employment actions for employers or employees.

As a threshold matter, no employee can sustain a claim for retaliatory discrimination without proving that the employer took an adverse employment action against him or her, but how adverse must an adverse action be? Certainly, some adverse actions will be 'no brainers,' such as firing. But what if, in response to the employee's charge before the EEOC, the employer docks the employee's salary? Or reassigns the employee to a less prestigious job? Or moves him or her from the fancy corner office to a room in the basement facing the boiler?

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