Tangible Employment Action: Definition and Significance in Employment Discrimination

Tangible employment action is a significant change in an employee’s employment status, typically carried out by supervisors or individuals with authority within an organization. It is a key concept in employment discrimination law, particularly under Title VII of the Civil Rights Act. This article explores the definition, examples, and legal implications of tangible employment actions, drawing insights from relevant legal resources.

Definition of Tangible Employment Action

A tangible employment action is a substantial change in an employee’s employment status, which can include:

• Hiring
• Firing
• Failing to promote
• Reassignment to significantly different responsibilities
• Undesirable reassignment
• Decisions causing significant changes in benefits

These actions are considered tangible because they have a substantial impact on an employee’s employment status and can adversely affect their career prospects and livelihood.

Power of the Enterprise

Tangible employment actions are official acts of the employer or enterprise that bring the official power of the organization to bear on subordinates. These actions are typically carried out by supervisors or individuals with authority within the organization. The power of the enterprise is a key factor in determining whether an action is considered a tangible employment action.

Vicarious Liability

Employers can be held liable or vicariously liable for the actions of their supervisors in relation to tangible employment actions. This means that if a supervisor takes a tangible employment action against an employee, the employer may be held responsible for the supervisor’s actions. This principle is based on the idea that employers have a duty to prevent and correct harassment and discrimination in the workplace.

Affirmative Defense

In cases of alleged sexual harassment under Title VII, if no tangible employment action is taken against the employee, the employer may raise an affirmative defense. This defense requires the employer to show that they exercised reasonable care to prevent and correct the harassment, and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities or otherwise failed to avoid harm. The affirmative defense is a way for employers to avoid liability in cases where they have taken steps to prevent and correct harassment.

Conclusion

Tangible employment actions are significant changes in an employee’s employment status that can have a substantial impact on their career prospects and livelihood. These actions are typically carried out by supervisors or individuals with authority within the organization. Employers can be held liable for the actions of their supervisors in relation to tangible employment actions. In cases of alleged sexual harassment under Title VII, employers may raise an affirmative defense if they have taken steps to prevent and correct the harassment.

Sources:

1. U.S. Equal Employment Opportunity Commission (EEOC). “Questions & Answers on Employer Liability for Harassment by Supervisors.” https://www.eeoc.gov/sites/default/files/migrated_files/policy/docs/harassment-facts.pdf
2. U.S. Courts. “10.12 Civil Rights—Title VII—”Tangible Employment Action” Defined.” https://www.ce9.uscourts.gov/jury-instructions/node/179
3. LII / Legal Information Institute. “Tangible Employment Action.” https://www.law.cornell.edu/wex/tangible_employment_action

FAQs

What is a tangible employment action?

A tangible employment action refers to a significant change in an employee’s employment status or conditions, typically taken by an employer, that has a direct and substantial impact on the employee’s job. It often includes actions such as hiring, firing, demotion, promotion, reassignment, or a significant change in compensation or benefits.

How is a tangible employment action different from other employment actions?

A tangible employment action stands out from other employment actions because it carries significant consequences for an employee’s job. Unlike less severe actions such as minor changes in duties or routine performance evaluations, a tangible employment action has a substantial impact on the employee’s career, status, or compensation.

What is the legal significance of a tangible employment action?

A tangible employment action holds significant legal significance because it can form the basis for various employment-related claims, such as discrimination, harassment, or retaliation. If an employer takes a tangible employment action against an employee based on unlawful factors such as race, gender, or disability, it may expose the employer to liability under applicable employment laws.

Can a single incident qualify as a tangible employment action?

Yes, a single incident can qualify as a tangible employment action if it meets the criteria of being a significant change in the employee’s employment conditions. For example, if an employer fires an employee in retaliation for reporting harassment, that single act of termination can be considered a tangible employment action.

What are some examples of tangible employment actions?

Examples of tangible employment actions include:

• Firing or termination of employment
• Demotion or reduction in job title or responsibilities
• Denial of promotion or advancement opportunities
• Reassignment to a less desirable position or location
• Significant reduction in compensation or benefits

Can an employer take a tangible employment action for legitimate non-discriminatory reasons?

Yes, an employer can take a tangible employment action for legitimate non-discriminatory reasons. As long as the action is not based on unlawful factors such as protected characteristics (race, gender, religion, etc.), an employer generally has the right to make employment decisions, including those that may result in tangible employment actions.

What should an employee do if they believe a tangible employment action was taken unlawfully?

If an employee believes that a tangible employment action was taken unlawfully, they should consider taking the following steps:

1. Gather relevant evidence and document the details of the action.
2. Consult with an employment attorney to understand their rights and options.
3. Follow any internal grievance or complaint procedures established by the employer.
4. File a complaint with the appropriate government agency, such as the Equal Employment Opportunity Commission (EEOC) in the United States.
5. Consider pursuing a legal claim against the employer if warranted.

How can employers minimize the risk of unlawful tangible employment actions?

To minimize the risk of unlawful tangible employment actions, employers can take several proactive measures, including:

• Establishing clear policies and procedures that prohibit discrimination, harassment, and retaliation.
• Providing regular training to employees and managers on equal employment opportunity and appropriate workplace conduct.
• Implementing a fair and objective performance evaluation system.
• Conducting prompt and thorough investigations into complaints of discrimination, harassment, or retaliation.
• Seeking legal guidance to ensure compliance with applicable employment laws.