With retaliation claims on the rise in the United States for the sixth year in a row, employers need to be cautious when dealing with an employee who has engaged in protected activity (such as making complaints about unlawful conduct or filing claims), because any “adverse employment action” could potentially provide a basis for a retaliation claim. But what qualifies as an adverse employment action? Some actions, like demotion or termination, are easily understood as adverse employment actions. But what about other, less extreme actions? For example, can an employer deny the employee extra discretionary benefits without it being called an adverse employment action? A recent case in U.S. District Court for the District of Columbia, Bridgeforth v. Jewell, sheds some light on this question.In the case, the employee’s supervisors could have nominated him to receive an award of paid time off for certain acts performed while working. During his employment, the employee, a police officer with the United States Park Service, filed a discrimination claim that settled after about three years. According to the employee, after settling the claim, his employer retaliated against him by failing to nominate him for the paid time off awards on five occasions during the three months following settlement. Key to the employee’s allegations was whether the failure to nominate him for this paid time off award constituted an adverse employment action. The court held that it did not.
In so deciding, the court gave employers some useful language to consider when weighing the effect of an employment action on an employee who has engaged in protected activity. The court said that an adverse employment action involves “a significant change in employment status” demonstrating “objectively tangible harm.” Petty slights or minor annoyances that all employees experience do not qualify as adverse employment actions. In the Bridgeforth case, the employee failed to show that he was consistently nominated for the award, or that the nomination always led to receiving the award. The benefit that he did not receive was thus too attenuated to be considered a significant change in his employment status.
Often employees who have engaged in protected activity remain employed after filing a claim. Employers must then tread carefully when making decisions that might affect the employee’s employment status. It is helpful for employers to have clarity about what actions are considered adverse and might be subject to a retaliation claim, and which actions are simply “petty slights and minor annoyances” that all employees experience. Along with suggesting some guidelines for a “significant change in employment status” and “objectively tangible harm,” the Bridgeforth case sheds some positive light with respect to at least one specific situation: lack of nomination of an employee for a discretionary award does not rise to the level of an adverse employment action. However, as retaliation claims continue to rise, employees will surely come up with other ways to perceive being slighted, such that any time an employer knows an employee has engaged in protected activity, it should carefully vet any changes to the individual’s employment circumstances.