California Court Rejects 9th Circuit's
Definition of Adverse Employment Action
In
a recent decision from the California Court of Appeal, the court rejected
the 9th Circuit and the EEOC's definition of
"adverse employment action" in retaliation cases.
Under
both state and federal law, an employer is prohibited from taking
"adverse employment action" against an employee in retaliation
for complaining of unlawful discrimination or harassment, or testifying or
assisting with a complaint. Government Code section 12940(h) makes it
unlawful "to discharge, expel, or otherwise discriminate against any
person" who has opposed unlawful practices under the California Fair
Employment and Housing Act (FEHA).
In
McRae v. Department of Corrections, Cal.App.1st. Dist., (March 8, 2005)
No. A098073, the California
court made clear that it will define what constitutes an "adverse
employment action" in retaliation cases differently from the federal
courts.
Background of the Case
Dr.
McRae was a board certified surgeon who began working for the California state prison in Vacaville in 1992. In 1995, she filed a
race discrimination complaint with the Department of Fair Employment and
Housing (DFEH) claiming that she was denied a position as Chief Medical
Officer at Solano state prison because of her race.
According
to McRae, her DFEH complaint triggered a number of retaliatory actions, and
she filed a lawsuit for unlawful retaliation. The alleged retaliatory
actions included a letter of instruction, an internal investigation
regarding her work performance, and an inter-facility transfer to Solano
Prison after she returned from a disability leave.
The
Department of Corrections argued that its actions were not retaliatory and
did not constitute "adverse employment actions." According to the
Department, the letter of instruction was intended to remind Dr. McRae of
her duties to be on time and report absences. The internal investigation
was a result of reports that Dr. McRae had been derelict in her duties and
was done in order to determine if the reports were true. Finally, the
inter-facility transfer was done to remove Dr. McRae from a situation that
had become so unpleasant that she had taken non-industrial disability
leave. Dr. McRae had been involved in a confrontation with some of the
nurses at Vacaville
state prison.
Prior State Law Defined Adverse
Employment Action
The
crux of the issue before the court was whether the actions taken against
Dr. McRae amounted to an "adverse employment action" under California law.
Earlier
California
decisions made clear that it is insufficient to merely show that the
plaintiff had been subject to some form of adverse treatment. Instead,
prior California
courts have found that the plaintiff must show the employer's retaliatory
actions had a "detrimental and substantial effect on the plaintiff's
employment."
California courts
recognize that simply because an employee is unhappy or uncomfortable does
not amount to actionable retaliation: [w]orkplaces
are rarely idyllic retreats and the mere fact that an employee is
displeased by an employer's act or omission does not elevate that act or omission
to the level of a materially adverse employment action. [Citation.] (Thomas
v. Department of Corrections (2000) 77 Cal.App.4th 507,
511.)
Instead,
California
courts have required proof of a substantial effect in order to balance the
chilling effect of retaliatory acts against an employee with the need for
employers to have freedom to manage their business practices, and the need
for courts to avoid entanglement in every job dissatisfaction and personnel
matter. This standard also guards against frivolous lawsuits.
Ninth Circuit and EEOC Take a Different Position
Dr.
McRae argued that the state court rule is too restrictive and that a
broader rule adopted by the Ninth Circuit should apply. This rule
incorporates language from the Equal Employment Opportunity Commission's (EEOC's) Compliance Manual. In Ray v. Henderson, 217 F. 3d 1234 (9th Cir.
2000), the Ninth Circuit adopted this broad rule for the kind of employer
action that can constitute retaliation. The Ninth Circuit in Ray held that
an adverse employment action is any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter the charging party or
others from engaging in protected activity. This is referred to as the
deterrence test
The
Ninth Circuit has held that, under this rule, adverse employment action
might include demotions, disadvantageous transfers or assignments, refusals
to promote, unwarranted negative job evaluations and toleration of
harassment by other employees. While some of these actions materially
affect the terms and conditions of employment others do not - - but they
are still considered adverse employment actions under the Ninth Circuit
rule.
California
Refuses to Adopt Ninth Circuit Rule
In
McRae, the California Court of Appeal refused to adopt the deterrence test.
The court found that the deterrence test was overly broad and could lead to
a finding of adverse employment action in nearly every employment action or
decision. For instance, an employee might wish to avoid changing offices,
having other responsibilities added, having more employees added to his/her
unit, or being introduced to a new dress code. Yet, according to the court,
none of these things alone should provide a basis for a claim of retaliation.
Thus,
the court of appeal said that a plaintiff must show that the employment
action constituted "substantial and tangible harm, such as, but not
limited to, a material change in the terms and conditions of
employment."
Actions by Employer Were Not Adverse
Under
this test, the Court found that Dr. McRae did not suffer adverse employment
action. The letter of instruction did not result in loss of pay, status or
job responsibilities. Moreover, employers have a right to take corrective
actions or warn employees that their conduct might result in disciplinary
action. Even an unwarranted negative performance evaluation cannot alone
trigger a FEHA claim because that would discourage employers from taking
action to deal with misconduct or improve performance.
The
investigation also was not adverse. There was no evidence that it was
unfounded and retaliatory. From the investigation, a decision was made to
suspend Dr. McRae. Crucially, however, the suspension was never
implemented.
Finally,
the transfer was not retaliatory in this instance because it was not a
demotion and resulted in no loss of pay or benefits. Dr. McRae failed to
show with substantial evidence that the transfer resulted in a less
desirable work environment that had materially adverse consequence, and not
just that it was somewhat less than pleasant. For instance, she needed to
show that the transfer was comparable to a demotion, loss of pay, material
loss of benefits, loss of title or significantly diminished
responsibilities.
Tips for Employers
While
California Courts might apply a more stringent test for determining when an
adverse employment action occurs, the fact of the matter is that employers
do not want to allow the work environment to ever reach that level.
Moreover, employees could still sue in federal court.
To
avoid claims of retaliation in the workplace, employers should:
- Publish strongly
worded policies prohibiting retaliation.
- Train supervisors
and managers to be aware of more subtle means of retaliation, such as
ostracism.
- Scrutinize
performance evaluations of employees who have brought workplace
complaints to weed out any hidden retaliation.
- Scrutinize
disciplinary action against employees who have brought complaints to
ensure that the discipline is appropriate. Ask whether you would treat
your best employee the same way.
- Consistently and
uniformly apply policies and discipline evenly and uniformly.
- Don't be afraid to
take corrective action and manage the employee. Be aware of the issue
of retaliation and consult with legal counsel.
Elizabeth
R. Ison is a principal with The Ison Law Group, a law firm specializing in
all aspects of workplace law. Among other specialties, Ison conducts
neutral workplace investigations and acts as an expert witness with respect
to human resource compliance issues. Call (916) 492-6555 or e-mail her here.
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