Most people, including defense attorneys, think that actionable retaliation can only occur if the employer fires the employee for engaging protected activity or demotes them or cuts their pay. In other words, these people think that it must be an ultimate employment action. But that is simply not the case. It used to be, but as the War Doctor said in the Doctor Who 50th Anniversary Special, “no more!”
So what is the standard? The standard is that for purposes of retaliation, all a plaintiff must show is an action that is “materially adverse.” That standard came from the 2006 Supreme Court case Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. 53 (2006). Again, as indicated above, that was a change from what several Circuit courts had been doing, which is requiring an ultimate adverse action. As defined by the Supreme Court, a “materially adverse action” is much broader than an ultimate action. Specifically, an employment action is materially adverse is any action that “would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Supreme Court even provided examples of the kinds of actions that could in the proper context be “materially adverse.” Specifically, the Supreme Court said that under certain circumstances, something as small as being excluded from business lunches or a schedule change could meet that standard. The Supreme Court stressed that “context matters” and that whether something is significant will depend on the particulars of that case.
The other great thing about the above standard is that it basically applies to all retaliation statutes regardless of whether the underlying protected activity is unlawful discrimination, wage complaints, or fraud.
Regarding reprimands, the Fifth Circuit has described generally when such things rise to the above “materially adverse” standard. A reprimand is actionable retaliatory conduct if it results in consequences such as changes to compensation, job duties, raises, promotions, bonuses, or job title. So, for example, if the reprimand that you received prevents you from being considered for a merit increase or able to be promoted to a new position, then it is an actionable adverse action for a retaliation claim. And that makes sense to me. The whole purpose of the anti-retaliation provisions is to encourage reporting of potentially unlawful conduct. If you thought that you might not be considered for promotion or a bonus or a raise, then you might not report discrimination that you felt you were experiencing or that saw other experience.
Regarding transfers to other positions, the Fifth Circuit has similarly described when such things meet the “materially adverse” standard. Essentially, a transfer is considered a materially adverse action if it is the equivalent of a demotion with one key difference: the transfer does not have to affect the employees pay. Here is what the Fifth Circuit has said about that: (“[T]o be equivalent to a demotion, a transfer need not result in a decrease in pay, title or grade; it can be a demotion if the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.” Alvarado v. Texas Rangers, 492 F.3d 605, 613 (5th Cir. 2007). Again, this makes sense to me. Otherwise, there would be this huge loophole for employers to pretty openly retaliate against individuals as long as the company did not cut the pay or title of an employee. To use an extreme example, imagine a senior vice president reported sexual harassment by the company president. The president then responds by changing the SVP’s job duties to include only sorting mail. Every other SVP at that company would probably now think twice before reporting other unlawful conduct that they experienced or witnessed.
If you think you have been retaliated against for reporting unlawful conduct, you should consider talking to an employment lawyer like those at Wiley Walsh, P.C. or Wiley Wheeler, P.C. We have experience in handling these types of matters and would be more than happy to discuss any potential avenues you might have.