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Beware long suspensions, even with pay! They could be adverse employment actions

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in Discrimination and Harassment,Human Resources

Employees don’t usually have standing to sue for discrimination unless they can show they suffered some adverse employment action, such as termination, demotion or transfer to a less desirable position.

Traditionally, however, a temporary suspension with full pay hasn’t been deemed an adverse action, mainly because courts want to give employers time to determine what an appropriate disciplinary action might be. The paid suspension then amounts to a cooling-off period for both employee and employer.

But if the employer extends that suspension or turns it into a transfer to a no-duties position, courts may take that into consideration.

Recent case: John Franko, who is white, was a police officer for the city of Cleveland. While on duty, he was involved in a shooting incident involving a black suspect. The police department temporarily took him off street patrol duty and assigned him to the department’s gym.

Ordinarily, such a paid suspension only lasts long enough for a psychiatric evaluation and fitness exam. Franko, however, was on gym duty for eight months. He did not earn overtime, nor could he work a second job he had held before.

He sued, and the court said his long gym assignment was an adverse employment action. It ordered a trial based on evidence that black officers involved in shootings were not placed on such a long suspension. (Franco v. City of Cleveland, No. 1:07-CV-547, ND OH, 2009)

Final note: Remember, discrimination based on race can apply to anyone. So-called reverse discrimination is still discrimination, and it’s illegal.

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