It's Not Always About the Salary!
A tangible employment action is not simply someone making a threat or giving you lip service. So, if someone’s telling you they’re going to meet you in the parking lot, next to your car, at 3 o’clock—that’s just not going to cut it. Now, if they show up and attack you, then that would be assault. A tangible employment would be:
--being stripped of your staff;
--being denied a promotion with no basis;
--receiving a pay cut under false pretenses;
--being transferred to a menial job;
--being transferred to a remote location or being transferred to a hard to reach location (making it difficult to get to and from work) or being isolated from other staff; or
--being subjected to a hostile work environment that is so offensive and persistent that you can’t perform your job.
Some employers try to get all Slick Willie with these actions. So, sometimes they won’t take away an employee’s salary or benefits. Then, they’ll argue that there isn’t a really significant change in job status/no significant penalty. But, that argument doesn’t fly because tangible employment actions aren’t considered based on whether or not an employee retains the same salary or benefits. So, if there is a significant and negative change to your job—even with the retention of pay and benefits—you can argue that you were hit with a tangible employment action.
According to the Equal Employment Opportunity Commission, tangible employment actions:
--occur when a supervisor uses the official powers of the company to take action(s) against an employee;
--are official acts of the company;
--are often documented in company records;
--often have the official approval of the company and its internal processes;
--often cause financial harm; and
--generally, can only be caused by a supervisor or other agent of your company, since a coworker just doesn’t have the power to bring about a significant, negative change in another employee’s employment status or job responsibilities.
So, if you feel you are the wrongful victim of a tangible employment action, PREPARE TO FIGHT BACK!
Tip #1: Maintain a record of any memos or emails you receive that are meant to justify the tangible employment action (e.g., corrective action notice, written warnings, etc.);
Tip #2: Be able to produce your salary history, by maintaining a record of your income with your employer. Show any decrease in pay. Maintain a record of any memos or emails that are meant to justify a salary decrease.
Tip #3: Check the personnel manual! Before such extremes actions were taken against you, check to see if your employer is following its own policies and procedures. If not, point out any violations that may exist.
Tip #4: Find out about past history! Have other employees engaged in the same behavior that you were accused of engaging in or of having the same performance deficiencies that you were accused of having? If so, what happened to those people? Does it differ from actions taken against you? If so, and the consequences for other employees was nonexistent or very minor, you may be able to claim disparate and unequal treatment by your employer.
Tip #5: Keep pushing your side of the story! Don’t let HR or your employer ignore your version of the facts. Document everything, including every relevant conversation you’ve had with HR staff and authorities at your job. List any contradictions in what they say about policies and justifications for the actions. Provide witness statements to support you (e.g., character references or eye witness accounts of events, etc.) and request that HR check with these individuals to confirm your story.
Tip #6: File a grievance or request an internal investigation! Don’t let tangible employment actions slide. If you believe a manager is acting on racist whims by stripping you of your staff or cutting your pay, ask for HR to investigate the matter! It’s your career, fight for it! If the company doesn’t find in your favor, appeal the decision!
Tip #7: Seek legal counsel! Don’t be afraid to consult an attorney in response to a fraudulent tangible employment action.
Tip #8: Remember that your company will usually do everything in its powers to make it appear that the tangible employment action was warranted. This will be their justification for why no violations of Federal law occurred. It is your job to show that the arguments presented by your employer are nothing but pretexts used to hide their true motivations, which might be harassment, discrimination or retaliation. By keeping a log of events that transpired, keeping hard copies of memos, emails, and other documentation that supports your case, and by tracking comments made and actions taken by your supervisor, Human Resources, and corporate management, you can begin to demonstrate that their defense is dishonest and solely meant to cover up the violation of your employee rights. Focus on why their defense is untruthful! That is the burden placed on complainants!