10.4A.2 CIVIL RIGHTS—TITLE VII—"ADVERSE EMPLOYMENT ACTION" IN DISPARATE TREATMENT CASES
An action is an adverse employment action if it materially affects the terms, conditions, or privileges of employment.
See Comment at 10.4A (Adverse Employment Action Defined) and Comment to Instruction 10.4A.1 ("Adverse Employment Action" in Retaliation Cases).
The definition of "adverse employment action" for purposes of a disparate treatment claim comes from Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th Cir.2000) (finding that "[t]he removal of or substantial interference with work facilities important to the performance of the job constitutes a material change in the terms and conditions of a person’s employment" and therefore qualifies as an adverse employment action, but that the employer’s failure to respond to grievances did not amount to an adverse employment action because "it did not materially affect the compensation, terms, conditions, or privileges of the [plaintiffs’] employment"); see also Kang v. U. Lim America, Inc., 296 F.3d 810, 818–19 (9th Cir.2002) (plaintiff established a prima facie case of disparate treatment where the defendant subjected the plaintiff "to a number of adverse employment conditions, including severe verbal and physical abuse, discriminatory overtime, and termination, that constituted ‘a material change in the terms and conditions’ of [the plaintiff’s] employment").
An "adverse employment action" is not necessarily the same as a "tangible employment action." Although many tangible employment actions may also be adverse employment actions, a tangible employment action need not be adverse, such as the situation where a supervisor coerces an employee to engage in sexual acts by threats of discharge. In such a case, an employee need not actually suffer discharge or other adverse employment action in order to demonstrate a tangible employment action. See Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir.2003) ("[D]etermining not to fire an employee who has been threatened with discharge constitutes a ‘tangible employment action,’ at least where the reason for the change in the employment decision is that the employee has submitted to coercive sexual demands."). See also Instruction 10.4B (Tangible Employment Action Defined).