Denial of Additional Shifts Could Constitutes Adverse Action for Retaliation Claim under Title VII

In a U.S. District Court decision earlier this year, that Court found that a restaurant’s denial of an employee’s opportunity to work additional shifts could satisfy the adverse action requirement to support a Retaliation claim under Title VII. [1]

The employee worked as a server at a restaurant. During the period the plaintiff was employed, she alleged that on multiple occasions she was subject to sexually humiliating comments and unwanted physical contact, including inappropriate touching, by her immediate supervisor.[2] The plaintiff informed management repeatedly of the sexual harassment by her supervisor.  When her employer learned that she had had received legal advice based on the sexual harassment, the plaintiff alleged that she was no longer able to pick up additional shifts at the restaurant.  On July 8, 2010, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which she alleged discrimination based on sex and retaliation under Title VII.  The employer moved to dismiss the claims.

To support a Retaliation claim under Title VII, a plaintiff must demonstrate: (1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity.  “Adverse employment action includes any retaliatory act or harassment if, but only if, that act or harassment results in an adverse effect on the terms, conditions, or benefits of employment.”[3] An adverse action can also include an employer’s decision to demote an employee or relegate him to “reduced pay, diminished opportunity for promotion, reduced responsibility, or lower rank.”[4]

The District Court held that it was plausible that “a plaintiff serving in a job with a fluctuating schedule where pay is tied closely to the amount and type of hours worked (and where certain shifts are more remunerative than others), could make a showing that the failure to assign additional shifts effectively subjects the plaintiff to ‘reduced pay, diminished opportunity for promotion, reduced responsibility, or lower rank.’”[5] The Court accordingly found that the employee had sufficiently alleged an adverse action and the facts demonstrated a link between her seeking legal advice and the adverse action by the employer.

If you are the victim of sexual harassment or discriminatory treatment in the workplace, it is imperative that you consult with an experienced employment law practitioner.  The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about Title VII and workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.



[1] Ortiz v. Big Bear Events, LLC, 3:12-CV-341-RJC-DCK, 2013 WL 247444 (W.D.N.C. Jan. 23, 2013)

[2] Doc. No. 1–1: Complaint at ¶¶ 23, 36

[5] See Footnote 1.

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