TOP TIP: Employment Action May Still Be Adverse Even If Employee Does Not Mind


A recent case expands the definition of an adverse employment action on which a discrimination claim may be based. Typically, an “adverse” employment action is one to which the plaintiff objects; but in Vinson v. Koch Foods of Alabama, LLC, the U.S. Court of Appeals for the Eleventh Circuit found an adverse action existed despite the fact that the employee did not mind the change and even received a raise.

The plaintiff, who is Hispanic, and two of her HR colleagues, who are Caucasian, left the HR office unattended for several hours one day. All three were suspended. Following the suspension, the plaintiff was reassigned from the HR office to the production floor in a poultry processing plant, and given additional production line duties (including handling chicken carcasses and operating machinery). The two co-workers were not reassigned. After her position was eliminated, the plaintiff sued the employer, claiming, among other things, that she was subjected to discriminatory discipline.

In order to prove a discriminatory discipline claim, a plaintiff has to show that she was subjected to more severe discipline than someone outside her protected class who engaged in similar misconduct. A necessary part of the claim is that she suffered from an adverse employment action, which is defined as “a serious and material change in the terms, conditions or privileges of employment.” The employer had argued that the plaintiff suffered no adverse action because she did not mind being on the production floor and eventually received a raise. But the Eleventh Circuit found that the plaintiff’s “subjective view of the change is not controlling.” Rather, it found that she had been relocated from an office to a refrigerated production floor and experienced a significant change in her duties with the addition of manual chicken processing tasks. These changes, which the court deemed to be “material,” were not shared by the Caucasian employees.

The lesson for employers here is to be very careful about ensuring similar treatment for similarly situated employees. Even if the targeted employee does not object to a change, the difference in treatment can still ultimately support a discrimination claim. Any difference in treatment should be based on legitimate and articulable business reasons.