Friday, August 14, 2015

3d Cir.: Paid Suspension "Typically" not an "Adverse Employment Action" Under Title VII

To state a claim for "disparate treatment" discrimination under Title VII, the plaintiff must allege that (s)he suffered an "adverse employment action." The statutory language encompasses hiring, firing, and “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1).

In Jones v. SEPTA (opinion here), the Third Circuit addressed an issue of first impression (that means they have never addressed it before): Does a paid suspension constitute an adverse employment action? In short, the Court answered "no." The Court pointed to a number of other circuit courts that have held the same way, concluding "we think this chorus is on pitch."

Two caveats to attach to this holding:
  1. The Court left itself some room to distinguish this case from other situations. For example, they held that a paid suspension "typically" does not constitute an adverse an employment action. So, there's a little (in my opinion, not much) wiggle room.

  2. The standard for an adverse action in the retaliation framework is different, and easier to establish. The Court specifically noted "we need not consider and do not decide whether a paid suspension constitutes an adverse action in the retaliation context." 
The Court marked Jones "Precedential."