Actions that make employees feel bad aren’t necessarily ‘adverse’ under the law — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Actions that make employees feel bad aren’t necessarily ‘adverse’ under the law

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in Discrimination and Harassment,Human Resources

Employees who claim their employers discriminated against them must show that the alleged action was “adverse,” not merely uncomfortable, inconvenient or even unfair.

To be adverse, an employer’s action generally must affect something like pay, benefits or prospects for promotion. Disagreeing with an employer’s decision or being bothered by something that happened at work isn’t enough to persuade most courts to take an employee’s complaint seriously.

Recent case: Monica sued her employer for alleged discriminatory actions against her. For example, she claimed she received a review that wasn’t fair, was denied a promotion request to fill an open position she wanted and was responsible for more tasks than several co-workers she deemed to have poor work ethics.

The court reviewed each claim and concluded none rose to the level of being adverse.

Reviews may be unfair, but if a particular review doesn’t impact pay or benefits, it’s not grounds for a lawsuit. Not every eligible employee can fill every open position. Absent proof that the reason Monica didn’t get an open position was some sort of retaliation or discrimination, that’s not grounds for litigation either.

And finally, having to do more work than someone else isn’t adverse either unless it can be tied to an illegal reason For example, if Monica had to do more work than a similarly situated male employee, that would have made her claim more viable. In this case, the co-worker was another female. (Arroyo-Horne v. NYC Police Department, et al., No. 16-CV-03857, ED NY, 2016)

Final note: Fortunately, courts don’t expect every workplace to be absolutely fair for every worker.

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