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10.4A Civil Rights—Title VII—"Adverse Employment Action" Defined (Comment Only) *revised

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10.4A CIVIL RIGHTS—TITLE VII—"ADVERSE EMPLOYMENT ACTION" DEFINED

Comment

The definition of "adverse employment action" in the context of a retaliation claim is different from that in a disparate treatment claim. Whereas an adverse employment action for purposes of a disparate treatment claim must materially affect the terms and conditions of a person’s employment, an adverse action in the context of a retaliation claim need not materially affect the terms and conditions of employment so long as a reasonable employee would have found the action materially adverse, which means it might have "dissuaded a reasonable worker from making or supporting a charge of discrimination." See Burlington No. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); see also Thompson v. North American Stainless, LP, ___ U.S. ___, 131 S. Ct. 863 (2011) (applying Burlington standard).

Approved 4/2011