My supervisor told me my performance was terrible the last few weeks and is threatening to put me on probation, and I’m certain he feels that way because I’m Jewish, and he overtly displays his dislike for Jewish people. This feels like an adverse employment action, but is it?

Title VII, the New York Executive Law and the New York City Human Rights Law makes an employer liable for discriminating against its employees based on agegender, national origin, race, religion, or for retaliating against an employee for having challenged such discrimination. Courts recognize that most discrimination and retaliation is not carried out so openly as to provide direct proof of it.  Accordingly, a wronged party may use circumstantial evidence to assert a prima facie case of discrimination (or retaliation) by alleging: 1) [she] belonged to a protected class; 2)[she] was qualified for the position; 3) [she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. But what really is an adverse employment action?  Sounds like so many different events can fall under such a category, including the one above.

Courts have traditionally defined an adverse employment action as a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices … unique to a particular situation.

So, when assessing whether an action taken by your employer is “adverse” under the law, you should make sure the action is substantial in nature.  Even though an action may feel substantial, does not necessarily mean that it qualifies the same under the law.  It is always best to consult with an employment discrimination attorney to better determine whether any action taken against you is materially adverse.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

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