Tangible Employment Action: What It Is And What You Should Know

An employee can sue employer if the employer does something wrong to him. In most cases, the wrong deed of the employer is referred to as a tangible employment action.

Tangible employment actions often impact the employee negatively with the most obvious tangible employment action being firing.

Tangible employment actions affect the legal rights of the employee. The ability and willingness of an employee to sue the employer and win the case, along with the type of tangible employment action, determines if the employee can recover some damages caused by employer.

What Is A Tangible Employment Action?

Tangible employment action refers to any form of action that causes a significant change in an individual’s employment status.

Significant changes here include firing, hiring, denial of promotion, reassignment with different responsibilities, demotion, suspension, economic harm, loss of pay, pay raise, promotion, change in working conditions, or even a significant change in benefits.

It means an employer took some action against his or her employer which in most cases, would end up harming the employee.

In some cases like a pay raise or promotion, the change in employment status can benefit the employee.

In a legal field like employment law, tangible employment action is considered to be a term of art.

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What Style of Harassment Is Tied To A Tangible Employment Action?

Quid Pro Quo Sexual Harassment

One style of harassment that is tied to a tangible employment action is Quid pro quo sexual harassment. This is usually a case where an employer offers his or her employee sexual advances in exchange for a promotion.

When the employee goes ahead to perform sexual favors and gets promoted by the employer. In this situation, even if the employee was not fired, he or she still has a case for sexual harassment and the tangible employment action here is the promotion.

Whenever a workplace harassment case involves a tangible employment action, employers are held responsible. This means that the only thing expected of the employer is to prove that the unlawful harassment and tangible employment action happened.

The law protects an employee when the employer in a position of power used his or her power to get a sexual favor in return. The employee can sue his employer if he suffers any adverse action like firing, demotion, suspension, etc.

However, in the United States, employment is at will. At-will employment means they can fire the employee for any reason, so long as the reason is not discriminatory or illegal.

Hostile Work Environment

Another type of harassment that is tied to a tangible employment action is a hostile work environment.

A hostile work environment is often a result of severe and pervasive harassment that rises to become legal harassment.

In the case of a hostile work environment, no tangible employment action needs to be taken. The fact that your harassment was so severe and pervasive is enough.

Sometimes, the employers may not be held responsible for hostile environment claims, and the company can assert the defense to protect itself.

The company can claim that the employer employed reasonable care to prevent and correct harassment, and maybe the employee failed to an extent to take advantage of the preventive or corrective measures provided by the employer to avoid harm.

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Who Can Impose a Tangible Employment Action?

Is is usually an employer that is responsible for imposing tangible employment actions.

According to the Equal Employment Opportunity Commission (EEOC); an agency that is responsible for investigating employment violations, an individual qualifies to be an employee’s supervisor if he or she is authorized to undertake tangible employment decisions that affect the employee.

Though it may not be obvious, it is important to remember that your employer is liable for the actions taken by your supervisor.

This because, in the past, some employers try defending themselves by denying the knowledge of any discrimination against an employee which resulted in an adverse employment action.

Presently, the Supreme Court in the United States holds employers liable for negative and positive acts of their supervisors.

An employer is held responsible for the foolish acts of the supervisor which results in a violation of employment laws.

As an employer, it is also worth noting that your Human Resources department in your company can sue for a tangible employment action and in most cases, it will be your supervisor.

In some case though, your supervisor will involve the Human Resources department. The Human Resources department will go ahead to examine your performance reviews and take your supervisor’s suggestions.

Different companies have different ways to delegate the power to take tangible employment action, but the important thing is that once an adverse employment action is taken, you may have recourse.

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When Does Harassment Violate Federal Law?

Harassment is to violate the federal law if it involves discriminatory treatment based on race, color, sex (with or without sexual conduct), religion, national origin, age, genetic status, disabilities, the opposition of job discrimination by an employee, or even when an employee participates to investigate or complain proceeding under the different status of the EEO.

For conduct to be considered by the law, it has to be sufficiently frequent or severe to create a hostile work environment or result in a tangible employment action such as firing, hiring, demotion, promotion, etc.

Can Failure to Promote an Employee Be A Tangible Employment Action

Most times, people ask whether it is a tangible employment action if an employer fails to promote an employee. The answer is yes because failing to promote an employee when due is a significant change in employment status.

Therefore, the decision to deny an employee promotion is considered to be a tangible employment action.

Similar to other tangible employment actions, the failure to promote the employee is just part of the problem. The employee is often tasked to show that the denial of his or her promotion was due to an illegal reason.

The main goal in almost every case that involves tangible employment actions is to compensate the employee for the harm they must have suffered from the employer.

This means any case that involves the failure of the employer to promote his or her employee will have its aim set to compensate the employee too.

In this case, if the damages are obvious, then the employee would receive the difference between the amount of money that he or she would earn if promoted to the amount of money they earn currently.

How Should an Employee Sue the Employee When Denied Promotion?

It is worth noting that an employee should speak to an employment lawyer before they go-ahead to sue their employer to try and recoup damages suffered.

Also, the employee should consider that if they bring any lawsuit while still employed, there is a huge possibility that the employer might retaliate.

Of course, the law protects an employee from retaliation of the employer because sometimes, the employer may try to retaliate.

The employer may even pepper the employee’s file with bad evaluations and try to create a paper trail to justify an eventual termination.

Its recommended that the employee has a good employment lawyer who will represent him or her at this stage for the case to be successful. If the employee has already decided to leave the current job then he or she should consider suing to recover lost wages.

Occasionally, some employers tend to change their behavior when faced with lawsuits. Lawsuits are expensive, maybe it will shed light on the mismanagement and discrimination you have suffered.

Tangible Employment Action Harassment Examples

Sexual Harassement

First course of action if sexually harassed is to report to the management and then the government.

Is Demotion a Tangible Employment Action?

Yes it is.

anyone caught in this action will be demoted immediately.

Who Has the Power to Impose a Concrete Employment Action?

Most of the time, it is clear who can impose concrete employment activities. Typically, your manager or supervisor.

According to the Equal Employment Opportunity Commission (a body tasked with looking into employment issues), under the law:

A person who is considered a supervisor, is someone who has the power to make concrete decisions about the employment.

Your boss has the authority to demote, reassign, and, in some situations, dismiss you. This not to argue that there are no other scenarios in which your supervisor could take a concrete, adverse employment action (AEA) against you.

It is also important to remember—and this may not be immediately clear—that your employer is responsible for the concrete measures that your supervisor takes.

Employers used to defend measures taken against them by claiming that they were unaware of the discrimination that resulted in the adverse employment action.

However, the US Supreme Court ruled that employers are vicariously accountable for the actions of their subordinates. In other words, if a supervisor’s incompetence leads to a breach of employment laws, the employer is liable.

Additionally, as you would have anticipated, the human resources department can take concrete employment action against you because they have the power to. Your supervisor typically has the authority to terminate, demote, reassign, etc.

However, a supervisor may occasionally involve the Human Resources division. The Human Resource division may only analyze your performance evaluations and follow the advice of your supervisor.

In rare circumstances, your HR department may conduct an impartial investigation.

How companies assign authority to initiate concrete employment action varies. However, what matters is that you may have redress if an adverse employment action is done .

Conclusion

Any employee can sue employer when they suffer any form of tangible employment action.

A good employment lawyer will assess the situation and guide the employee through the options open, to ensure that the employee gets fully compensated for the damages suffered from the employer.

Frequently Asked Questions (FAQs)

References

• dcemploymentattorney.com – Why You Need To Know About Adverse Employment Actions
• bullardlaw.com – U.S. Supreme Court Narrowly, but Precisely, Defines “Supervisor” and “Tangible Employment Action” for Purposes of Title VII Workplace Harassment Claims
• eeoc.gov – Questions & Answers for Small Employers on Employer Liability for Harassment by Supervisors
• employment-labor-law.com – Tangible Employment Action
• scholarship.law.wm.edu – The Tangible Employment Action in Sexual Harassment Analysis
• ce9.uscourts.gov –  Civil Rights—Title Vii—”Tangible Employment Action” Defined
• law.cornell.edu – Tangible Employment Actions
• digitalcommons.wcl.american.edu – A Revised Tangible Employment Action Analysis: Just What is an Undesirable Reassignment?
• jstor.org – Tangible Employment Action: What Did the Supreme Court Really Mean in Faragher and Ellerth?

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