Adverse employment action

What it is

An adverse employment action is the harm element of most discrimination and retaliation claims. FEHA makes it unlawful to refuse to hire, discharge, or discriminate in compensation or in terms, conditions or privileges of employment because of a protected characteristic (Government Code section 12940(a)), and to discharge, expel or otherwise discriminate against a person for protected activity (section 12940(h)). Labor Code section 98.6 reaches "any adverse action" taken because of protected Labor Code conduct.

The standard

The California Supreme Court held in Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 that a FEHA retaliation claim needs an action that materially affects the terms, conditions or privileges of employment. Termination, demotion, a pay cut or a denied promotion clearly qualify. Lesser acts, such as unwarranted negative reviews, schedule changes or exclusion from meetings, can qualify when taken together as a course of conduct, and courts consider them collectively rather than one by one.

Why it matters to a plaintiff firm

Defendants often argue that pre-termination events were too minor to count. A chronology that captures every action, with its date and its effect on pay, duties or prospects, lets the firm show a pattern. It also shows proximity to the protected activity, which can support an inference of causation. Firms gather performance reviews, schedules, pay records and written warnings at intake. See the retaliation timeline guide.