WPI 330.06 Employment Discrimination—Retaliation—Adverse Employment Action—Definition

Use this instruction with WPI 330.05 (Employment Discrimination—Retaliation) when there is an issue whether the change is sufficiently adverse.

If both disparate treatment and retaliation are involved, combine the instruction with WPI 330.01.02 (Employment Discrimination—Disparate Treatment—Adverse Employment—Definition) to differentiate adverse employment action in disparate treatment claims from adverse employment action in retaliation claims.

In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67–68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the United States Supreme Court distinguished an adverse employment action in the context of a retaliation claim versus a disparate treatment claim. Whereas an adverse employment action for purposes of a disparate treatment claim must materially affect the terms and conditions of a person's employment, an adverse action in the context of a retaliation claim need not materially affect the terms and conditions of employment so long as a reasonable employee would have found the action materially adverse, which means it might have “dissuaded a reasonable worker from making or supporting a charge of discrimination” or deterred the charging party from engaging in protected activity. See also Ray v. Henderson, 217 F.3d 1234, 1241–43 (9th Cir. 2000); Trizuto v. Bellevue Police Dep't, 983 F.Supp.2d 1277 (W.D. Wash. 2013).

In Tyner v. State, 137 Wn.App. 545, 564–65,154 P.3d 920 (2007), Washington first adopted Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The primary change in Tyner's work conditions was a reassignment. The court held the crucial test was whether the change would dissuade a reasonable employee from making a complaint. The determination had to be based on the circumstances of the particular case.

Boyd v. Department of Social & Health Services, 187 Wn.App. 1, 349 P.3d 864 (2015), followed Tyner, and explicitly approved an instruction that contained the second sentence of this instruction—that the action must be one that would dissuade a reasonable employee from making a complaint. Boyd likewise affirmed Tyner that whether the action at issue is adverse depends on the circumstances of the particular case because “context matters.” Boyd, 187 Wn.App. at 13. Boyd involved a series of actions, including a two-week suspension without pay, a written reprimand, and a report to the police. Without deciding whether each individual action was adverse, a reasonable jury could find that the actions, taken together, were adverse. The court further affirmed that adversity is assessed from a reasonable employee in plaintiff's position. Boyd, 187 Wn.App. at 13–14; see also, Cornwell v. Microsoft Corp., 192 Wn.2d 403, 412 n.4, 430 P.3d 229 (2018) (a poor performance rating preventing future rehiring “undoubtedly” qualifies as an adverse employment action).