Do the Math: Court Takes Account of Economic Impact of Temporary Job Reassignments
"Not everything that makes an employee unhappy is an actionable adverse action," is an employment law gem that employers love to quote, and with good reason. When applicable, the argument that the harm allegedly sustained by the employee does not rise to the level of an "adverse employment action" can win the case even if the facts otherwise signal that illegal motivation may have been involved. Courts have often rejected an employee's claims of discrimination or retaliation based on an altered schedule, an office move or even an expansion of job duties, reasoning that the complained-of action was not sufficiently adverse. Lest we be lulled into a false sense of security, however, the Court of Appeals for the 7th Circuit recently handed down its opinion in Alexander v. Casino Queen, Inc.
, in which it recited its decision that the plaintiffs, two former cocktail waitresses, were entitled to take their case to the jury despite the fact that their primary complaint arose from the fact that their manager periodically changed the location within the casino where they served drinks.
The plaintiffs, each of whom had worked at the casino for more than a decade, had successfully bid on service areas on the casino floor that they viewed as favorable. However, according to the plaintiffs, on days when one or more of the six to eight waitresses per shift failed to come to work, the manager rearranged the cocktail waitresses. The plaintiffs alleged that on these days, their manager placed the plaintiffs and other African-American waitresses in low-revenue areas of the floor (i.e. penny slots) but placed white waitresses in high-revenue areas (i.e., high-roller tables).
The employer sought summary judgment, arguing that the reassignments did not rise to the level of an adverse employment action. After all, the reassignments were temporary. Nothing about the reassigned waitresses' job duties changed. The base pay the employer paid to the waitresses remained the same. The plaintiffs had merely claimed that the occasional reassignments reduced their potential
for earning tips. The employer emphasized further that the plaintiffs had only provided estimates of the difference in their tip earnings. Finding reliance on estimates impermissibly speculative, the district court judge dismissed the plaintiffs' case.
The Court of Appeals for the 7th Circuit saw the matter differently. The fact that the plaintiffs' base pay remained unchanged mattered not, because the plaintiffs' evidence demonstrated that 40-73 percent of waitress’ compensation came from tips. Given that the manager shuffled the waitresses as often as twice a week, the Court accepted the plaintiffs' estimate of a loss of $50 per week as a direct result of the manager's allegedly discriminatory practice. The district court had decided that plaintiffs' "uncorroborated, self-serving testimony" was insufficient to create a genuine factual dispute on the issue. The Court of Appeals disagreed. True, the plaintiffs could not say exactly how much tip money they had lost, but they had testified "based on first-hand experience" to the frequency of reassignments, to average tip earnings in their normal areas versus the reassigned area and to the fact "that these reassignments hurt them financially."
After Alexander v. Casino Queen
, the employer's argument that the plaintiff did not suffer an adverse employment action remains a powerful one. Still, Alexander
reminds employers of the relevant question: Does the employment action at issue negatively affect the employee's terms and conditions of employment in either a quantitative or qualitative way? Importantly, the case further reveals that mere estimates of financial harm may be enough to foil the employer's chances for a pre-trial dismissal. As you contemplate altering an employee's job duties or changing his or her schedule, take a moment to consider whether the change poses any hidden financial repercussions. In short, do the math.
Germaine Winnick Willett
is a member of Ice Miller's Labor and Employment Group. She and Ice Miller's other labor and employment attorneys assist employers faced with employment discrimination, retaliation, wage and hour, contract and other employment-related litigation. For additional information, contact Germaine at (317) 236-5993 or firstname.lastname@example.org
or any member of Ice Miller's Labor and Employment Group
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.