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What Qualifies as “Adverse Action” in a Discrimination or Retaliation Case?

An “adverse employment action” such as wrongful termination, denial of a raise or promotion, denial of benefits or assignment to less-attractive duties could play an important role in a whistleblower’s discrimination or retaliation lawsuit against an employer.

But what legal standards does the whistleblower need to demonstrate to be successful in such cases?

To establish a case of employment discrimination based on intentional discrimination, the employee must demonstrate the following:

  • The employee is a member of a protected class (certain gender, race, religion, etc.)
  • The employee suffered an adverse employment action
  • The employee conducted themselves according to and completed their duties to all legitimate expectations at the time of that adverse employment action, and
  • The employee was treated differently from other employees in similar situations who are not members of that protected class

If all these elements are met, the employer must demonstrate a legitimate non-discriminatory reason for adverse employment actions.

In retaliation cases, the whistleblower must demonstrate the following:

  • The employee engaged in a protected whistleblowing activity
  • The employer knew the employee engaged in that activity
  • The employee suffered an adverse employment action
  • The protected activity constituted a contributing factor in the ensuing adverse action

If all of these elements exist, the employer must demonstrate with “clear and convincing evidence” that this same employment action would have been taken had the employee not engaged in the protected whistleblowing activity.

For more information about providing discrimination or retaliation in a whistleblower case, contact an experienced whistleblower lawyer at Kardell Law Group.

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