California Jury Instruction CACI 2509 “Adverse Employment Action” Explained

New June 2012

Nakase Wade | California Business Lawyers & Corporate Lawyers

Give this instruction with CACI No. 2500, Disparate Treatment—Essential Factual Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements, CACI No. 2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential Factual Elements, if there is an issue as to whether the employee was the victim of an adverse employment action.

For example, the case may involve a pattern of employer harassment consisting of acts that might not individually be sufficient to constitute discrimination or retaliation, but taken as a whole establish prohibited conduct. (See Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116 P.3d 1123].) Or the case may involve acts that, considered alone, would not appear to be adverse, but could be adverse under the particular circumstances of the case. (See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389–1390 [37 Cal.Rptr.3d 113] [lateral transfer can be adverse employment action even if wages, benefits, and duties remain the same].)

•“Appropriately viewed, [section 12940(a)] protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also 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. Although a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.” (Yanowitz, supra, 36 Cal.4th at pp. 1053–1054, footnotes omitted.)

•“[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees 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 are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” (Yanowitz, supra, 36 Cal.4th at pp. 1054–1055.)

•“An ‘ “adverse employment action,” ’ … , requires a ‘substantial adverse change in the terms and conditions of the plaintiff’s employment’. ” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063 [119 Cal.Rptr.3d 878, internal citations omitted.)

•“Contrary to [defendant]’s assertion that it is improper to consider collectively the alleged retaliatory acts, there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” (Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations omitted.)

•“Moreover, [defendant]’s actions had a substantial and material impact on the conditions of employment. The refusal to promote [plaintiff] is an adverse employment action under FEHA. There was also a pattern of conduct, the totality of which constitutes an adverse employment action. This includes undeserved negative job reviews, reductions in his staff, ignoring his health concerns and acts which caused him substantial psychological harm.” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 [69 Cal.Rptr.3d 1], internal citations omitted.)

•“The employment action must be both detrimental and substantial … [¶]. We must analyze [plaintiff’s] complaints of adverse employment actions to determine if they result in a material change in the terms of her employment, impair her employment in some cognizable manner, or show some other employment injury … . [W]e do not find that [plaintiff’s] complaint alleges the necessary material changes in the terms of her employment to cause employment injury. Most of the actions upon which she relies were one time events … . The other allegations … are not accompanied by facts which evidence both a substantial and detrimental effect on her employment.” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511–512 [91 Cal.Rptr.2d 770], internal citations omitted.)

•“The ‘materiality’ test of adverse employment action … looks 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,’ and the test ‘must be interpreted liberally … with a reasonable appreciation of the realities of the workplace … .’ ” (Patten, supra, 134 Cal.App.4th at p. 1389.)

•“Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 366–367 [225 Cal.Rptr.3d 321].)

•“[A] mere oral or written criticism of an employee … does not meet the definition of an adverse employment action under [the] FEHA.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 92 [221 Cal.Rptr.3d 668].)

•“Mere ostracism in the workplace is insufficient to establish an adverse employment decision. However, ‘ “[W]orkplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for … retaliation cases.” [Citation].’ ” (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 212 [126 Cal.Rptr.3d 651], internal citations omitted.)

•“Not every change in the conditions of employment, however, constitutes an adverse employment action. ‘ “A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.” …’ ‘[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.’ ” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 [58 Cal.Rptr.3d 444].)

•“[R]efusing to allow a former employee to rescind a voluntary discharge—that is, a resignation free of employer coercion or misconduct—is not an adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161 [217 Cal.Rptr.3d 258].)

•“[T]he reduction of [plaintiff]’s hours alone could constitute a material and adverse employment action by the [defendant].” (Light, supra, 14 Cal.App.5th at p. 93.)

•“[A] job reassignment may be an adverse employment action when it entails materially adverse consequences.” (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1279 [227 Cal.Rptr.3d 695].)

•“[T]he denial of previously promised training and the failure to promote may constitute adverse employment actions.” (Light, supra, 14 Cal.App.5th at p. 93.)

•“The trial court correctly found that the act of placing plaintiff on administrative leave [involuntarily] was an adverse employment action.” (Whitehall, supra, 17 Cal.App.5th at p. 367.)

•“[Plaintiff] has presented no authority, and we are aware of none, holding that a single threat of an adverse employment action, never carried out, could itself constitute an adverse employment action under the standard articulated in Yanowitz and its progeny.” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 879 [235 Cal.Rptr.3d 161].)