Tag archives: adverse action

“Promising practices” encouraged by EEOC to prevent retaliation

The U.S. Equal Employment Opportunity Commission (EEOC) has issued its final “Enforcement Guidance on Retaliation and Related Issues” following a six-month public comment period. The guidance replaces the EEOC’s 1988 Compliance Manual section on retaliation. Workplace retaliation claims have been on the rise in recent years and have been the focus of several opinions of the … Continue reading

EEOC continues its efforts to incorporate sexual orientation and gender identity into Title VII protections

On March 1, 2016, the EEOC filed two cases with one clear goal: to expand the meaning of “sex” under Title VII. In EEOC v. Scott Medical Health Center, P.C., Case No. 2:16-cv-00225-CB (W.D. Pa.),  the agency alleges that the defendant harassed an openly gay male employee because of his sexual orientation, thereby committing unlawful … Continue reading

Collective Agreements vs. Charter Rights in Nova Scotia

When a collective agreement is negotiated, compromises are often made.  Benefits are given to some but not all employees. However, this can risk being viewed as discriminatory – depending on who receives the new benefits and who does not. In a recent case before the Nova Scotia Court of Appeal, IAFF, Local 268 v Adekayode, it was examined … Continue reading

University fined for adverse action over secret plan to transfer teaching staff

The Federal Court of Australia has penalised a university for unlawfully threatening adverse action when it prepared secret plans to move senior teaching staff to a new employing entity. Adverse action The Fair Work Act 2009 (Cth) makes it unlawful for an employer to take adverse action against an employee because of his/her possession or … Continue reading

Dismissal on erroneous basis is not unlawful adverse action

In a majority decision, the Full Court of the Federal Court of Australia has rejected a claim of unlawful adverse action brought by an employee who was summarily dismissed for improperly claiming sick leave – notwithstanding that, in fact, the sick leave was justified.  The decision emphasises the centrality of the employer’s subjective reason for … Continue reading

The prohibition on employment discrimination based on “sex” takes many forms

Numerous federal, state, and local laws in the United States prohibit employers from making employment decisions based on an employee’s or job applicant’s sex and thus protecting employees from being discriminated against based on their “sex”. Title VII of the Civil Rights Act of 1964 is the principle federal law which prohibits discrimination based on … Continue reading

Complaints and workplace rights

In previous posts we have examined the “workplace rights” limb of the adverse action jurisdiction in the Fair Work Act 2009 (Cth) (the Act) – specifically the protection given in relation complaints.  The issue has been considered again in a recent decision of the Federal Circuit Court.… Continue reading

Employer’s Decision to Subcontract Work is not Unlawful Adverse Action

The Federal Court of Australia has held that the decision of an employer to subcontract a particular type of work, rather than have it performed by an employee, did not constitute unlawful adverse action. The decision applies the relatively restrictive approach to the question of causality adopted in two earlier decisions of the High Court … Continue reading

Investigation did not constitute adverse action

The Federal Circuit Court has ruled a senior executive who was investigated, following anonymous allegations of misconduct was not the victim of unlawful adverse action, finding that among other things, the investigation itself was not “adverse” and that other action taken by the employer was not taken for a prohibited reason as alleged. What does … Continue reading

Adverse action due to political opinion

The Federal Court has ruled that a union organiser, who was redeployed to other duties (and ultimately dismissed) because of his involvement in a Socialist political party, was the victim of unlawful adverse action. The union’s concern that he might “undermine or infiltrate” the (trade) union movement did not justify the action. Facts The Applicant … Continue reading