Some negative performance reviews are "adverse employment actions"

You can't sue over just any negative decision at work. If you want to sue for employment discrimination, the courts require that you identify an "adverse employment action." That's a legal term of art. Termination from employment or a demotion certainly qualifies as adverse employment actions. The closer calls are the job transfers or other decisions which may or may not have legal consequence, at least in the eyes of the courts ruling on employment discrimination claims.


In a recent case, Judge Rakoff ruled that negative employment ratings were enough to qualify as adverse employment actions. The case is Shapiro v. N.Y. City Dep't of Educ., 2008 U.S. Dist. LEXIS 46327 (S.D.N.Y. June 13, 2008). My office co-represented the plaintiffs in this case.


Normally, negative performance reviews are not enough to bring a lawsuit. In other words, they are not adverse employment actions. But you can sue over them by showing that the reviews have consequences down the road. In Shapiro, the plaintiffs were public school teachers who received "U" ratings. The U stands for unsatisfactory. As Judge Rakoff noted in summarizing the law in this area:

a plaintiff suffers an adverse employment action if he or she undergoes a "materially adverse change" in the terms and conditions of employment. To be "materially adverse," however, a change must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Instead, a materially adverse change must be of the order of "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or [the like]."

In this case, the U ratings were sufficiently detrimental to allow the lawsuit to go to trial:

those plaintiffs who received end-of-year U ratings have created a genuine issue of amterial fact as to whether such a rating constitutes an adverse employment action. Plaintiffs have adduced evidence that the consequences of a U rating include: (a) being removed from "per session" (i.e. extracurricular) paid positions; (b) being barred from applying for per session positions for five years; (c) inability to work in summer school; (d) lost income, including inability to move up a salary step; (e) reduced pension benefits; (f) inability to transfer within the school district; and (g) damaged professional reputations and stymied careers.