Dive Brief:
- Honda did not unlawfully retaliate against a recruiter by shifting her duties and allegedly making other changes to her work environment after she began taking leave under the Family and Medical Leave Act, the 6th U.S. Circuit Court of Appeals held April 21 in Erwin v. Honda North America, Inc.
- The recruiter started taking intermittent leave for depression and anxiety after her father died, according to court records. During this time, Honda allegedly discovered deficiencies in her work so it shifted her duties and temporarily took away her ability to work remotely. At the end of one FMLA leave, the recruiter resigned, but Honda rehired her six months later. In the meantime, she sued Honda for disability discrimination and retaliation.
- A federal district court granted pretrial judgment to Honda, and the 6th Circuit affirmed. The recruiter’s claims failed because she couldn’t show she suffered a materially adverse action — an essential element of discrimination and retaliation claims, the 6th Circuit said. Although her job duties shifted, she kept her salary, benefits, job title and job level, and her opportunities for advancement remained the same, the court explained. Losing her remote work capabilities didn’t rise to the level of a materially adverse action because it was temporary — while she was in training — and didn’t result in any economic loss, the panel held.
Dive Insight:
Equal employment laws prohibit an employer from retaliating against someone for asserting rights the laws protect, according to a U.S. Equal Employment Opportunity Commission guidance. Retaliation occurs when the employer takes “materially adverse” action that “might deter a reasonable person from engaging in protected activity,” the guidance states.
Materially adverse actions include concrete actions, such as a demotion, discharge, denial of benefits or a promotion or the decision not to hire an applicant, the guidance explains. Depending upon the circumstances, materially adverse actions can also include work-related threats, warnings or reprimands; negative or lowered evaluations; or a transfer to a less prestigious job or work location.
In addition, the U.S. Supreme Court has found that unlawful retaliation can include less tangible actions, such as adversely changing the work schedule of a parent who has caretaking responsibilities for school-age children or excluding an employee from weekly training lunches that contribute to professional advancement, the guidance notes.
Erwin demonstrates what is not retaliation in the 6th Circuit’s eyes. For example, besides the shift in the recruiter’s duties, a shift in her supervisors was not actionable retaliation, said the appeals court, which has jurisdiction over Kentucky, Michigan, Ohio and Tennessee.
The recruiter initially had two supervisors, but after Honda changed her duties, it directed her to report to only one of them, according to court documents. She argued that this was an adverse action because she supervisor she now reported to was in a lower “rung” of Honda’s organizational structure and had improperly questioned her FMLA leave.
Rather than being “materially adverse,” the shift in supervisors was nothing more than having the recruiter report more frequently to the same person, and Honda corrected the supervisor for her inappropriate actions, the 6th Circuit said.
The recruiter also alleged she was supervised more intensely after her FMLA leave started. But this wasn’t materially adverse because the recruiter wasn’t terminated or demoted, her responsibilities weren’t diminished, and her pay rate and benefits remained the same, the court explained.
Although constructive discharge is a materially adverse action that can be considered unlawful retaliation, it didn’t happen here, the 6th Circuit held.
Constructive discharge occurs when an employer creates “an objectively intolerable work environment to deliberately force an employee to resign,” the appeals panel explained. However, criticism and negative feedback don’t meet that standard, it said. So the recruiter’s fear of facing increased supervision and critical feedback at work fell short of suggesting that her job environment was objectively intolerable, and there was no evidence that Honda did anything to force her to quit, the panel said.
