In Boss v. Julian Castro, (7th Cir. March 18, 2016), the Seventh Circuit affirmed summary judgment for the employer because, among other reasons, the employee had not suffered an adverse employment action. An adverse employment action requires “a significant change in employment status . . . [s]uch changes can involve the employee’s current wealth, his career prospects, or changes to work conditions that include humiliating, degrading, unsafe, unhealthy, or otherwise significant negative alteration in the workplace.” Traditionally, adverse employment actions encompass terminations, demotions, suspensions without pay, and lost promotions. In the retaliation context, adverse employment actions can be a little broader because the standard changes to whether the action “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
In Boss, the employee argued that being placed on a Performance Improvement Plan (PIP) was an adverse employment action, as well as being charged AWOL and losing a telework day. The Seventh Circuit rejected these arguments and held that all of these actions were not “adverse employment actions” under federal law. “As to his placement on a PIP, this Court has held that implementing such a plan is simply not materially adverse in the discrimination context . . . [n]or does requiring an employee to substantiate his time off . . . [a]nd asserting that a lost telework day constitutes an adverse employment action borders on the frivolous.” Even under the broader retaliation context, the Seventh Circuit still held that these actions would not dissuade a reasonable employee from engaging in future protected activity.
However, it should be noted that whether an action constitutes an adverse employment action is a fact-sensitive inquiry and things could have turned the other way in Boss if the PIP led to tangible job consequences, such as the loss of a bonus or the reduction in pay.