When an employee experiences discrimination or retaliation at work it often takes the form of significant action, such as a termination, demotion, or suspension, all of which clearly represent an “adverse employment action” under relevant anti-discrimination and retaliation laws. But many times the retaliation and discrimination take subtler forms including a “death by a thousand cuts” approach. The question then becomes, was this conduct sufficiently concrete to meet the legal definition of employment discrimination or whistleblower retaliation?
To establish a prima facie case of employment discrimination based on intentional discrimination an employee must show that they:
are a member of a protected class,
suffered an adverse employment action,
met their employer’s legitimate expectations at the time of the adverse employment action, and
were treated differently from similarly situated employees outside their protected class.
If these elements are met then the employer must articulate a non-discriminatory reason for the adverse employment action. If an employer does so, then the employee has to prove by a preponderance of the evidence that the employer’s articulated reason is a mere pretext/ excuse for discrimination.
Similarly, in a whistleblower retaliation case (for example under the Sarbanes Oxley Act of 2002 (SOX)), the employee must show:
they engaged in protected...
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