In virtually all employment discrimination claims, the employee is required to establish some wrong that was done to them, which is known in legal terms as an "adverse employment action." When we think of adverse action, there are some generally accepted actions such as:
- Being fired
- Being demoted
- Losing seniority
- Being given decreased pay
- Suffering a material loss of benefits
It is also common knowledge that certain actions in the workplace are not sufficient to bring a lawsuit, such as not reimbursing certain expenses, performance evaluations that do not affect pay or promotion opportunities, or transfers without changes in salary or benefits. There is, however, another type of employment action on the horizon that may be actionable.
Have you been given a heavier workload than other co-workers?
Have your job responsibilities been changed to the point that your workload has increased considerably, even though your job title has not changed? Although a heavy workload is not always a sign of discrimination or retaliation, there may be some situations when a court will consider an increased workload as evidence of discriminatory or retaliatory bias. Such an action could even be considered an adverse employment action, depending on the circumstances. The success of such a claim would necessarily depend on the specific facts, but it is not something that should be overlooked.
Cases Where a Heavy Workload Has Been Considered Evidence of Bias
In one pregnancy discrimination case, the Seventh Circuit found evidence that an employee's workload was inexplicably increased very soon after she informed her employer that she was pregnant. In a race discrimination case, a Hispanic housing inspector was assigned to a larger geographic area than his five Caucasian co-workers. To make matters worse, he was disciplined for falling behind in his work. A New York federal court found that the differences in assignments and discipline supported an inference of racial bias, in that case. Another example is when an employee who has a physical impairment that amounts to a legal disability receives an increased workload that does not comply with any documented work restrictions.
Retaliation Cases Involving an Excessive Workload
If an employee complains about an excessive workload, some courts have considered that complaint to constitute "protected activity," especially when the employee reasonably believes he is complaining of unlawful activity. More likely, if an employee's workload is increased after making a complaint regarding some other unlawful conduct, the resulting increase in workload may constitute an "adverse employment action." With retaliation claims, there only needs to be evidence that the action taken by the employer would be "likely to dissuade a reasonable employee from making or supporting a discrimination claim."
Evidence of a heavy workload can also be relevant to show retaliatory intent. In one sex discrimination case, the employee complained to her supervisor that she was being treated differently than male co-workers. After the complaint was made, her supervisor increased her workload and excluded her from meetings. The Court found these facts to be circumstantial evidence of a "pattern of antagonism," which the Court held created an inference of retaliation. The same was true in a race discrimination case where an African-American employee filed an EEOC charge and was then given an excessive workload as compared to non-African-American workers.
If you have any questions regarding your employment situation, or believe you are being treated unfairly, please give us a call.