Employer’s Trivial Adverse Actions Could Not Be Basis for Bias Claim


By Joanne Deschenaux January 27, 2020
hard hat

An Asian-American employee in his 50s who alleged that the city of Los Angeles discriminated against him based on his race and age could not proceed with his bias claims because he didn't suffer an adverse employment action, a California appeals court ruled.

The employee argued that the city's conduct—criticizing his work more than the work of younger, non-Asian employees; denying his request for vacation time; failing to inform him of overtime opportunities; and refusing to provide job training—was enough to support his bias claims, but the court disagreed. Minor or relatively trivial adverse actions by employers do not materially affect the terms, conditions or privileges of employment and so cannot serve as the basis of a lawsuit under California's Fair Employment and Housing Act (FEHA), the court said.

The employee began working as an equipment mechanic with the city in 1981, when he was 23 years old. He worked for the city continuously, receiving positive reviews and promotions. In 2008, he was promoted to mechanic of heavy-duty equipment. He was still working for the city when he filed his lawsuit in 2017.

He claimed that his supervisor repeatedly complained about his performance, although younger, non-Asian employees were performing at a similar level. But while he claimed he was formally disciplined, he did not specify what this discipline entailed, nor did he allege that he was suspended or lost pay as part this discipline. He did not allege that any formal disciplinary writings were part of his annual evaluations or became part of his personnel file.

He further claimed that the city denied him vacation time on at least one occasion for no stated reason, and he alleged that his supervisor failed to regularly and publicly post overtime availability but instead informed only certain employees, who were usually Hispanic and often younger, of overtime availability. The employee claimed that it was only through his own diligence in searching out the overtime lists and asking other employees that he was able to obtain overtime.

Finally, he alleged that he never received training necessary to do his job, and his supervisor instead chose to train younger, Hispanic employees. However, he admitted that he was able to do the work with the assistance of other employees.

Identifying Adverse Employment Action

The court first noted that a cause of action for discrimination under FEHA must be based on an adverse employment action. This requirement, the court said, protects an employee against unlawful discrimination with respect not only to actions such as termination or demotion, but also to "the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career."

However, the court stressed, minor or relatively trivial adverse actions or conduct by employers that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions or privileges of employment and cannot serve as the basis for a FEHA lawsuit.

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The court then ruled that none of the alleged conduct in this case rose to the level of adverse employment actions sufficient to support the employee's bias claims. The court rejected the employee's argument that, taken together, his allegations showed a course of conduct amounting to an adverse employment action. Although, the court said, there is no requirement that an employer's discriminatory acts constitute "one swift blow" rather than a series of "subtle yet damaging injuries," this does not mean that an employee can pursue an action based on a series of minor acts that, taken together, do not materially affect the terms, conditions or privileges of employment.

Wong v. City of Los Angeles, Calif. Ct. App., No. B291785 (Dec. 2, 2019).

Professional Pointer: There is no precise test to determine what type of adverse treatment can be considered discrimination in the terms, conditions or privileges of employment. Rather, the significance of particular types of adverse actions must be evaluated by considering the legitimate interests of both the employer and employee.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.


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