By: Thomas S. Tripodianos Published: March 2010

Is the assignment to employee of additional work after a co-worker left an "adverse employment action," for the employee to create a case of retaliation under both Title VII and New York Human Rights Law?

Question. Under these harsh economic times many companies are being forced to reduce the size of their workforce in an effort to reduce expenses. While studies have shown that such downsizing only works in the short term one of the effects of reducing the number of workers may be an increased work load for those that remain.

Employers must not only be vigilant to make sure that they follow the law with regards to terminating employees but must also be vigilant to ensure a proper workplace environment is maintained for those who remain.

In this month’s column we explore the latter issue. The assignment of more work however, was not a result of layoffs but came about after a co-worker left. The remaining employee claims that the assignment of more work is an "adverse employment action," and a clear case of retaliation for having reported alleged acts of harassment. The employee in question complained immediately about the extra work load, and her workload was reduced as a result.

Is the assignment to employee of additional work after a co-worker left an "adverse employment action," for the employee to create a case of retaliation under both Title VII and New York Human Rights Law?

Answer. NO.
To prove that she suffered an adverse action, Employee must show that she “endure[d] a materially adverse change in the terms and conditions of employment,” which “might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation. This requirement stems from the effort to “protect[ ] individuals from actions injurious to current employment or the ability to secure future employment.”

Employee claims that Employer's actions against her amounted to unlawful retaliation in violation of Title VII and state law. To make out a showing of retaliation, Employee must offer evidence (1) that she was engaged in a protected activity, (2) that Employer was aware of this activity, (3) that she suffered an adverse employment action, and (4) that there was a causal connection between her protected activity and the adverse action. Title VII's “anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” This is an objective standard: “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”. Furthermore, “normally petty slights, minor annoyances, and simple lack of good manners” in the workplace fall short of this standard. If an employee meets her minimal burden and the employer counters with legitimate justifications for its actions, then the employee must show that the proffered reasons are merely pretextual.

Employee contends that employer retaliated against her for complaining about harassment by assigning her more work following another employee’s departure. Under the circumstances, however, this was not a sufficiently adverse action. Employee has not shown that this falls within the category of actionable harm. Moreover, she complained almost immediately about the additional accounts, and her workload was reduced. There is also no evidence causally linking the increase in workload to her harassment complaint, nor has she established a basis on which to conclude that employer’s explanation for the reassignment-other employee’s departure-is pretextual.

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