You can only sue your employer if your employer did something wrong to you. In most cases, the thing your employer did wrong is called an adverse employment action. Adverse employment actions are employment decision that negatively impact you as the employee. The most obvious example is a firing.
However, the specific definition of adverse action depends on the context. For instance, something that is considered an “adverse action” in a sex discrimination case may not be an “adverse action” in an MSPB appeal for a federal government employee.
Whether your employer took an adverse action affects your legal rights —whether you can sue your employer, when you have to take action, and what you have to prove to win your case. And the type of adverse action determines the damages you could recover.
What are examples of adverse employment actions?
Different laws have different definitions, and even slightly different names, for adverse actions. Here are some examples in the most common types of employment cases:
EEO Discrimination and Retaliation
You may be able to sue your employer for discrimination or retaliation under federal laws, like Title VII of the Civil Rights Act and/or state laws, like the DC Human Rights Act. You can bring a claim if your employer either took a “tangible employment action” against you or subjected you to a hostile work environment. However, tangible action cases are typically much easier to prove. A tangible action is “a significant change in employment status.” These are typically considered negative tangible employment actions in discrimination and retaliation cases:
- Failure to promote
- Undesirable reassignment
- Denial of a leave request
In addition to the above examples, courts and administrative agencies may recognize other types of tangible employment actions. However, you’ll generally have to prove that the action caused a significant change in compensation, benefits, or work duties. To file a discrimination or retaliation complaint, federal employees must contact an EEO counselor within 45 days of the tangible action; private-sector and other types of employees may need to file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) within as few as 180 days. Other deadlines may apply for state and local government employees.
Federal Government Employee Discipline
Most federal government employees have rights before and after their federal employer can take certain adverse actions. For example, federal employees may have due process rights before they can be removed, suspended, demoted, or furloughed. As a federal employee, this means that you must receive advance written notice of the proposed action, the reasons for the action, and your rights. You also have the right to review any evidence the agency considered in proposing the action. You have the right to respond to that notice in writing, orally, or both. Additionally, most federal employees have the right to file an appeal with the U.S. Merit Systems Protection Board (MSPB) for the following types of adverse actions:
- Suspension of more than 14 days
- Reduction in grade or pay
- Furlough of 30 days or less
The Whistleblower Protection Act (“WPA”) refers to “personnel actions.” You may be able to bring a claim under the WPA if your employer took, failed to take, or threatened to take or not take any of the following “personnel actions” against you in retaliation for making a protected disclosure or engaging in another protected activity:
- Adverse action
- Detail, transfer, or reassignment
- Performance evaluation
- Decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action
- Decision to order psychiatric testing or examination
- Implementation or enforcement of any nondisclosure policy, form, or agreement
- Another significant change in duties, responsibilities, or working conditions
Were you subject to an adverse employment action?
If your employer took an adverse action against you, Alan Lescht and Associates, PC, represents federal government employees around the world, as well as private-sector and state and local government employees in DC, Maryland, and northern Virginia. Our employment attorneys will evaluate your case, determine whether you were subject to any adverse employment actions, and will advise you about your rights. Contact us today to schedule a consultation.