Having done this now for over two decades, I understand how employers can often make employees feel underappreciated and even wronged. But not every slight and annoyance is tantamount to discrimination or retaliation.
In a recent Second Circuit Court of Appeals decision, the plaintiff, a special-education teacher, appealed the dismissal of discrimination and retaliation claims. “In a nutshell,” said the court, the plaintiff “alleged that Defendants discriminated against him based on his Orthodox Jewish religion, retaliated against him when he complained of the disparate treatment to federal and local agencies, and subjected him to a hostile work environment.”
Let’s focus on the first two claims because they involve discrete acts.
Among other things, the plaintiff claimed that the Defendants:
- assigned him to a challenging summer school class and another where he had to teach a remote class during the COVID-19 pandemic inside the school building rather than from home,
- placed him in a classroom on a floor without a restroom,
- required him to work with — in his view — “very low[-]functioning and high[-]maintenance students,”
- never told him about an upcoming field trip,
- made him ask an assistant principal for the classroom supplies, and
- delayed delivery of iPads for his students.
In terms of discrimination, on their face, the plaintiff’s religion wouldn’t seem to motivate any of these problems at work. Or, as the Second Circuit described some of them, “a laundry list of discrete acts, untethered from any relation to each other.”
Notwithstanding, a discrimination claim requires some action material enough to change the terms and conditions of employment. The classic hallmarks are termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, and significantly diminished material responsibilities. Here, the plaintiff didn’t lose any salary, benefits, seniority, or job status.
Although the definition of an adverse employment action for claims of retaliation covers a broader range of conduct than for claims of discrimination, a plaintiff must still plausibly assert that the adverse employment action is harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination.
What we’ve got here — at worst — is a short list of disruptions, inconveniences, and petty slights. Nothing here is bad enough to constitute discrimination or retaliation.