Labor & Employment Law

Letter to file not an adverse employment action under Title VII

Stoddard v. Eastman Kodak, ____F.3d____(2d Cir. Feb. 13, 2009), reminds us that not every possible negative thing that happens at work is actionable under Title VII. Title VII only outlaws discrimination with respect to "material adverse employment actions" which result in a change in the terms and conditions of employment.

Here a letter critical of the employee?s performance did not rise to the level of an adverse employment action. Additionally, the employer?s "excessively harsh criticism" and the fact that the plaintiff was given inadequate office supplies was not sufficient to establish the requisite adverse employment action.

I believe that the court may have erred. A letter to the file is the first step in discipline and documents an employee's behavior. That letter may be used by the employer to justify subsequent actions he may have taken against the employee. Therefore, I believe that such letters are adverse employment actions.

More fundamentally, though, I see the court's point with respect to criticism and the lack of office supplies, I believe the court needed to consider all three of these circumstances together, not just individually.

Mitchell H. Rubinstein

Full post as published by New York Public Personnel Law on March 27, 2009 (boomark / email).