Issues in Employment Law

July 2002

Reduction in an employee's pay, benefits, workload, or responsibilities can constitute adverse employment actions for employment discrimination cases.

An employee may sue for employment discrimination only if such employee has suffered an adverse employment action. Not every change in an employment relationship will be deemed sufficient to rise to the level of an adverse employment action. The D.C. Circuit Court of Appeals, in Forkkio v. Powell (No. 01-5080), confirmed that certain actions such as the downgrading of an employee will constitute an adverse action for purposes of discrimination where the pay is decreased, the work is changed, and the higher grade was "temporary." The undermining of an employee's authority by a supervisor does not per se constitute an adverse employment action. Although the plaintiff in Forkkio failed to demonstrate an adverse employment action because the "promotion" from which he was "demoted" was always explicitly temporary, the court did restate those types of actions that would be deemed adverse.

If an employer wishes to promote an employee for a temporary period of time, the employer must make it clear to the employee that the promotion is only temporary at the time of promotion. If the employer fails to do this and subsequently downgrades the employee, this action may be seen as an adverse employment action.