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James P. Tarquin, P.A. Motto
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Can An Employer Discriminate Against Employees By Giving Them More Burdensome Work Duties?

Burdensome Work Duties

As part of establishing a prima facie of discrimination, an employee must show that he or she was subjected to an adverse employment action. Courts generally define an adverse employment action as one that materially affects the compensation, terms, conditions, or privileges of the employee’s employment. In most cases, an adverse employment action involves a failure to hire, failure to promote, demotion, reduction in pay, suspension, or termination. Under such circumstances, the employee is being subjected to an employment action that results in economic harm. However, adverse employment actions extend beyond actions that result in economic harm and lesser actions may constitute adverse employment actions. For example, in the U.S. Eleventh Circuit Court of Appeals held in McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994) that an employee who was given fewer responsibilities and was made to perform more menial tasks suffered an adverse employment action. Likewise, the U.S. Ninth Circuit Court of Appeals held in Rang v. U. Lim. Am., Inc., 296 F.3d 810 (9th Cir. 2002) that assigning an employee more or more burdensome work responsibilities is an adverse employment action.

Discrimination Case Based On Lesser Actions

The Ninth Circuit’s decision in Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008) illustrates the principle that lesser actions not resulting in economic harm to an employee can constitute an adverse employment and the legal basis for a discrimination case. In that case, Christie Davis (Davis) alleged that she was discriminated against on the basis of sex in violation of Title VII of the Civil Rights Act of 1964. After being hired a journeyman electrician, Davis was assigned to work on a project at a high school. Davis was the only female electrician at the job site. While working at the job site, Davis claimed that she was treated differently and less favorably than male employees. The unequal treatment included excluding her from meetings, giving her a disproportionate number of jobs that involved working with hazardous materials, and giving her harder work assignments. Davis also claimed that she was subjected to derogatory sexist remarks by supervisors, including “we don’t mind if females are working as long as they don’t complain,” “this is a man’s working world out there, you know,” and a male employee would be assigned to work with her because he “needs a girlfriend.”

The trial court dismissed Davis’ sex discrimination case. The Ninth Circuit reversed the trial court’s decision and reinstated Davis’ case. At the outset of its opinion, the appellate court determined that assigning Davis a disproportionate amount of dangerous and strenuous work compared to her male co-workers constituted an adverse employment action. In doing so, the appellate court rejected the trial court’s attempt to minimize evidence that Clark was assigned a disproportionate amount of hazardous work because other male employees were assigned such tasks. The issue, the appellate court explained was “whether Davis was assigned hazardous tasks more frequently than the male employees, not whether she was the only employee assigned such tasks.”

Having found Clark was subjected to an adverse employment action, the appellate court turned to the threshold issue: whether the unequal work assignments were motivated by Clark’s gender. In finding that Clark had presented sufficient evidence establishing that the unequal work assignments were motivated by her gender, the court pointed to three pieces of evidence. First, the derogatory sexist remarks by managers and supervisors were evidence of a discriminatory motive. Second, because Davis demonstrated that male employees were treated more favorably, the more favorable treatment of male employees was evidence of a discriminatory motive. Third, the absence of female supervisors was evidence of a discriminatory motive. Taking this evidence cumulatively, the Ninth Circuit concluded that Clark was entitled to present her sex discrimination case to a jury.

Significance Of Lesser Actions Not Resulting In Economic Harm

Lesser actions that do not result in economic harm to an employee often play a vital role in proving an employment discrimination case. First, as the decision in Davis reflects, a lesser action can constitute an adverse employment action by itself and, thus, enable the employee to satisfy an element of a prima facie case of discrimination. Second, if the lesser action does not constitute an adverse employment action, the lesser action can be used to prove that the adverse employment action at issue was motivated by a discriminatory reason. As in Davis, the lesser action usually will show that the employee was treated differently and less favorably from other employees. This discriminatory treatment is evidence of a discriminatory motive. As explained by the Eleventh Circuit in Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994), “[p]roof of discriminatory motive can in some circumstances be inferred from the mere fact of differences in treatment.” Moreover, as Davis demonstrates, courts are required to consider all of the evidence cumulatively when determining whether the employee has proven that the adverse employment action was motivated by impermissible discrimination. Third, if the lesser action constitutes an adverse employment action, the lesser action, for these same reasons, can be used to prove that the adverse employment action at issue (the lesser action) was motivated by a discriminatory reason. 

Consultation With Employment Law Attorney

We have extensive experience representing employees who have been the victims of discrimination in the workplace. If you have been the victim of discrimination, or you have questions about your employment, please contact our office for a free consultation. Located in Ocala, Florida, we represent employees in employment law matters throughout Central Florida, including Alachua County, Lake County, Levy County, Marion County, Orange County, Pinellas County, Sumter County, and Volusia County. 

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