I’ve defended way more retaliation lawsuits than I can recall.
The facts and circumstances may vary, but the law doesn’t. A plaintiff claiming retaliation generally must: (1) engage in protected activity (e.g., an internal complaint of discrimination or participate in an EEOC proceeding); (2) suffer a materially adverse employment action; and (3) demonstrate a nexus between (1) and (2).
Last night, I read a recent decision from the Seventh Circuit Court of Appeals involving a plaintiff who complained about sexual harassment and later received a written reprimand for supposedly calling her coworker a “trick” (slang for prostitute).
The sexual harassment complaint satisfies the first element of a retaliation claim, and the plaintiff argued that the defendant reprimanded her because she complained (and not for the “trick” incident).
But, I want to focus on the second element, namely, whether a written reprimand is a material adverse employment action.
As the Seventh Circuit noted, “a documented reprimand alone is not an adverse action absent some tangible job consequence. The reprimand here did not come with a low performance rating or even a pay cut. It only stated that it could be used in determining an appropriate penalty if further misconduct occurred.” (cleaned up.)
But couldn’t a written reprimand be an essential step towards termination?
Yes, but independently, oral or written reprimands, as part of progressive discipline, generally do not implicate job consequences tangible enough to establish an independent basis for liability under anti-discrimination statutes like Title VII. The exception would be if the employee suffers some immediate consequence, like ineligibility for job benefits. Otherwise, corrective action can prompt employees to …wait for it … improve their performance. And that’s a good thing.
Since the plaintiff in this case could not identify any immediate consequence of the reprimand other than it brought her closer to termination, it was not a materially adverse action, and her retaliation claim failed.
Hey, before you leave, be sure to register for the return of The Employer Handbook Zoom Happy Hour on Friday, November 10, 2023, at Noon ET. I’ll be discussing antisemitism, its impact on the workplace, and how companies can address it. My guests will be some employment lawyers who are very passionate about this issue: Amy Epstein Gluck, Jonathan Segal, and Gregory Slotnick.
Click here (https://us02web.zoom.us/meeting/register/tZArcuuvpz4tE9wuO4mxvb3F1gVkc-qVZnnn) to register.