• Damage to Future Employment Prospects Found To Be Adverse Employment Action
  • February 5, 2005
  • Law Firm: Mayer, Brown, Rowe & Maw LLP - Chicago Office
  • A divided panel of the Tenth Circuit recently held that proof of a tangible adverse employment action is not necessary to support a damages award for retaliation in violation of Title VII. See Hillig v. Rumsfeld, No. 02-1102, __ F.3d __ (10th Cir. Aug. 27, 2004).

    A Perfect Fit

    Plaintiff Terrie Hillig worked for a government agency in a clerical position for about five years. While employed there, she filed two EEO charges against her supervisors, alleging that they discriminated against her based on her race when evaluating her performance and when reviewing her requests for job training and for personal leave. In 1998, Hillig applied for a position in the Department of Justice ("DOJ"). Plaintiff was informed during the interview that she would be a perfect fit for the job. Afterwards, the interviewer contacted Hillig's supervisors, who provided "very strong negative feedback." Among other things, the supervisors said that Hillig had performance problems, had filed EEO complaints, and was overall a "shitty employee." Slip Op. at 3. Hillig was not hired for the DOJ job. At trial, the DOJ interviewer testified that he would not have hired Hillig in any event because of her long fingernails.

    No Tangible Adverse Employment Action

    The jury returned a verdict in which it determined that Hillig had failed to prove by a preponderance of the evidence that she would have been awarded the DOJ job but for the allegedly retaliatory conduct by her supervisors. At the same time, however, the jury concluded that the supervisors had engaged in unlawful retaliation related to Hillig's EEO complaints. Thus, the jury awarded $25,000 in damages to compensate plaintiff for the retaliation. The district court entered judgment as a matter of law in favor of the government because the retaliation did not, based on the jury's verdict, culminate in a tangible adverse employment action. In other words, the retaliation did not result in a job loss, demotion, salary reduction or the denial of a particular job or promotion.

    Damaging Employment Prospects?

    The Tenth Circuit panel reversed the judgment as a matter of law and reinstated the $25,000 verdict. The panel held that an "adverse employment action" for purposes of Title VII can include an action that causes "harm to future employment prospects." Slip Op. at 5 (citation omitted). Stated differently, "an act by an employer that does more than de minimis harm * * * to a plaintiff's future employment prospects can, when fully considering the 'unique factors relevant to the situation at hand,' be regarded as an 'adverse employment action,' even where plaintiff does not show the act precluded a particular employment prospect." Id. at 9 (emphases in original) (citations omitted). In the majority's view, Hillig had shown that her supervisors' negative references had "serious[ly] harmed her ability to obtain employment at the DOJ in the future." Id. at 12.

    The dissent criticized this conclusion, noting that "[a]ny residual harm to Hillig is so improbable that it can only be assumed." Slip Op. at 2 (O'Brien, dissenting). The dissent also aptly observed that the fluidity of the "case-by- case approach" to defining adverse employment actions "renders guidance to bench and bar both malleable and transient." Id. at 4.