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34 U. Balt. L. Rev. 313 (2004-2005)
Adverse Employment Action in Retaliation Cases

handle is hein.journals/ublr34 and id is 321 raw text is: ADVERSE EMPLOYMENT ACTION IN RETALIATION CASES Brian A. Riddellt Richard A. Balestt I. INTRODUCTION Employees X, Y, and Z all work for Company A. These employees individually file complaints with the Equal Employment Opportunity Commission (EEOC), against Company A, because of perceived sexual harassment. Subsequently, a supervisor of employee X solicits other employees to make negative comments about employee X. Further, employee Y receives a negative year-end performance evaluation. Be- cause a condition of employment requires positive performance evalu- ations in order to receive pay increases, employee Yis precluded from receiving a pay raise. Additionally, employee Z is denied a promotion to a position for which he or she is highly qualified. This hypothetical presents the issue of whether an action is an ad- verse employment action, warranting retaliation claims under Title VII. The circuits are split three ways on this issue. One group of cir- cuits adopts an expansive approach, defining adverse employment action broadly to include any action that is reasonably likely to deter alleged victims or others from engaging in future protected activity.1 Under this approach, X, Y, and Z have been subjected to an adverse employment action, because the employer's behavior is likely to deter them, or others, from engaging in protected activity in the future.2 A second group of circuits adopts an intermediate approach, holding that adverse employment action includes any decision that adversely affects the terms, conditions, or benefits of employment.3 Under this approach, employee X has not suffered an adverse employ- ment action unless he or she can prove that the negative comments somehow affected a term, condition, or benefit of employment.4 Sim- ilarly, employee Z has not suffered an adverse employment action un- less he or she can demonstrate that the failure to consider him or her t Associate, Keating, Muething, & Klekamp (Cincinnati, Ohio). tt Professor of Law, Northern Kentucky University, Chase College of Law. 1. See, e.g., Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000). 2. See, e.g., id. 3. See, e.g., Von Gunten v. Maryland, 243 F.3d 858, 865-66 (4th Cir. 2001) (quoting Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997)). 4. See, e.g., id. (quoting Munday, 126 F.3d at 243). 313

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