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Fourth Circuit Limits Definition of Adverse Employment Action

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  • March 25, 2022

In order for an employee to allege a recognizable claim of employment discrimination under Title VII, he or she must claim that they suffered an “adverse employment action.” This term means some negative consequence resulting from the claimed discriminatory conduct. In a newly published opinion from the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia), Tabb v. Board of Education of Durham Public Schools, the court said that failure by a public school to provide a teacher with an assistant did not constitute an adverse employment action.

The plaintiff was a drama teacher at a public high school. Over the years, he requested that the school provide him with a theater technical director to relieve him of the hours he had to devote to technical issues when staging student performances. He noted that some of the other high schools in the system had both a theater director and a theater technical director, and he requested that his school follow the same hiring pattern, and that it provide him with a financial supplement for performing the technical theater work. After these requests were repeatedly denied, the plaintiff alleged that the school’s refusal to provide him with such assistance was because he was African-American.

The Fourth Circuit affirmed dismissal of the claim on summary judgment. The court first concluded that the school’s failure to pay the plaintiff a technical supplement did not constitute an adverse employment action because he failed to allege he was required to perform the technical work as a condition of his employment. Next, the Fourth Circuit found that failing to hire additional employees was also not an adverse employment action because the allocation of resources, including the hiring of teachers, were matters intended to benefit the students, not the teacher-employee.

Based on this reasoning, the Fourth Circuit takes a somewhat narrow view of the meaning of adverse employment action. When based on claims of unfair pay or bonuses, these actions need to be directly tied to the employer’s requirements of the employee. As the court noted, the plaintiff’s “decision to produce high-quality plays, while laudable, was a decision he made for the benefit of his students rather than a task he performed as a requirement of his position.” Moreover, the court’s reasoning that the hiring of another drama teacher was for the benefit of the students and not the benefit of the teacher-employee could potentially be expanded to other employers. Additional employees on a manufacturing floor to increase company efficiency, or better equipment for nurses to help with patient care are two analogous examples that could help mitigate exposure for employers from discrimination claims as benefits that benefit the customer/patient rather than the employee.