There is no requirement that a plaintiff be "perfect" in order to be negatively affected by an adverse action. The whistleblower protections in the Sarbanes-Oxley Act also adopt a broad definition of adverse action, preventing the whistleblower in question from being discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against by their employer. Therefore, claims of retaliation under most employment laws have a broader standard for adverse action than claims of discrimination. For example, the Supreme Court has ruled that anti-retaliation provisions extend to include any action that would be likely to dissuade a reasonable worker from making a discrimination claim as an adverse action. There are some situations where courts or statues have explicitly broadened the scope of what counts as an adverse action. However, at least one other federal Circuit has held that no tangible employment action is needed to assert a discrimination claim. For Texas workers, the Fifth Circuit has ruled that only final employment decisions are adverse actions for purposes of a discrimination claim. It is important to note that there is not yet a nationwide precedent about what exactly may constitute an adverse action. For example, if a Black employee notices that they have been passed over for a promotion or employment opportunity in favor of a less-qualified white employee, their employer has committed an adverse action that may have violated that employee's rights and created a claim under the Civil Rights Act. If any of these things happen to you, and you believe the reason is your membership in a protected class or your previous complaints about discrimination or workplace conditions, your rights may have been violated by your employer. Losing out on a promotion that you would have otherwise received also counts as an adverse employment action, as does not being hired for a job that you interviewed for. Firings, suspensions, and cuts to pay or benefits all fall into this category. Some actions taken by an employer are unambiguously adverse and will almost always create liability for the employer in discrimination or retaliation cases. Because of this, it is important to know just what counts as an adverse employment action, and when adverse actions taken against you may have violated your rights. Despite this, the term "adverse employment action" does not appear in the text of any of these laws, and its scope is almost entirely defined by precedent. Many laws intended to protect workers rely at least in part on the concept of an "adverse employment action." Anti-discrimination laws such as the Americans with Disabilities Act and the Civil Rights Act, anti-fraud laws with whistleblowing provisions, and laws that protect employees' right to collectively bargain, among others, all use this idea to define when an employee becomes eligible for damages due to the actions of their employer.
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