Another Federal Appellate Court Broadly Defines “Adverse Action” Under Title VII

In order to assert a discrimination claim under Title VII, an employee must show, among other things, that they suffered some “adverse employment action.” Courts have traditionally interpreted that to mean some “ultimate employment decision” (such as a lack of promotion or a termination), but several recent decisions from various U.S. Courts of Appeals have taken a broader approach, including most recently the Second Circuit.

In Buon v. Spindler, a school principal sued the school district, alleging, among other things, that she was subjected to an adverse action when she was denied an opportunity to participate in several additional programs, which were paid, because of her race, color and national origin. Although the federal district court found that the denial of these extra employment opportunities did not constitute an adverse employment action, the Second Circuit disagreed. The Second Circuit “define[d] an adverse employment action as a ‘materially adverse change’ in the terms and conditions of employment,” and provided examples, including “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” With respect to this case, the Second Circuit noted that “the denial of a lateral transfer or an additional assignment can qualify as an adverse employment action if that transfer or additional assignment would have materially changed the terms and condition of employment, such as by materially increasing the employee’s pay or materially increasing the employee’s opportunity for advancement.”

As we discussed previously, actions that apparently fall short of “ultimate employment actions” may still be considered adverse actions sufficient to support a discrimination claim.