Definition of Tangible Employment Action
Employees who experience harassment or discrimination in the workplace from a supervisor can, in some cases, find their work role or position altered. Tangible employment actions occur when an employee’s job role or status changes -- usually for the worse -- as a result of a supervisory decision. Tangible employment actions can violate an employee’s rights or the rights of other employees.
A person’s employment status consists of his job title, work responsibilities and the salary and benefits that go with the job. Supervisory decisions carry considerable weight in assigning job roles to employees or changing employment status. Tangible employment actions may be termination, a poor performance evaluation that disqualifies an employee for salary increase, or a suspension or a demotion that’s officially documented and occurs through the standard internal processes within an organization. More often than not, it occurs when an employee becomes the target of a supervisor’s reproof or punishment.
Tangible employment actions consist of direct and visible effects to a person’s job role or status. Supervisor threats to fire an employee are, understandably, demoralizing. But with no follow-through, mere threats do not constitute a tangible employment action. That said, the U.S. Court for the Ninth Circuit defines a tangible employment action as when a supervisor "abuses his supervisory authority," to create an employment condition that may lend credence to the supervisor's threats. In most cases, the effects of an action results in economic harm to the employee. Economic harm involves a cut in pay or benefits or an act that impedes a person’s ability to receive an increase in pay or benefits in the future. For example, an undesirable reassignment made by a supervisor can affect an employee’s chance for promotion from within her current role if she’s transferred to a new department. (See, Reference 2, first sentence of fourth paragraph under "Comment.").
Certain conditions must exist in order for a change in job role to fall within the definition of a tangible employment action. In effect, any changes that affect the prestige of a job role can qualify. In other words, such an action alters the actual duties and responsibilities of a job to the point where a noticeable reduction in status or authority exists. These changes constitute a tangible employment action, even in cases where an employee remains at the same salary and benefit levels. A change in job title can also fall within the definition, provided the new title indicates a clear loss of prestige or status.
A tangible employment action can serve as supportive evidence in cases where an employee files a harassment or discrimination claim against a supervisor. A supervisor’s actions or behaviors prior to a change in job role might involve sexual harassment or discrimination based on sex, race or any attribute that forms a basis for discrimination. A company’s grievance process allows supervisors to defend their decision to change an employee’s job role. Even in cases where a supervisor can justify her decision or even punitive action, grievance representatives must still determine whether a discriminatory motive exists on the part of the supervisor.