A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibility, or a decision causing a significant change in benefits. A tangible employment action is an element of a Title VII action, which may hold an employer liable, or vicariously liable for the actions of a supervisor.
For example, the Supreme Court has held that a denial of a raise may constitute a tangible employment action. Other courts have also found the following situations to constitute a tangible (adverse) employment action:
- Loss of benefits specifically negotiated for in an employment contract, such as a private office;
- Threats of discharge by a supervisor to coerce employees to comply with the supervisor's demand; and
- Withholding a promotion or benefits for promotion for refusing to accept sexual advances from a supervisor.
On the other hand, conditions such as reassignment to another office or downgraded job performance evaluations, by themselves, do not constitute a tangible employment action.
In the specific instance where an employee is alleging sexual harassment under Title VII, if no tangible employment action is found to be taken against the employee, then the employer-defendant may raise an affirmative defense to the action by showing that: (1) it exercised reasonable care to prevent and correct the harassment; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities or otherwise failed to avoid harm.
Lastly, constructive discharge by a supervisor can also qualify as a tangible employment action for which an employer is strictly liable under Title VII. However, a plaintiff is required to prove: (1) the elements of constructive discharge, and (2) that an official act of the employer underlies the constructive discharge.
[Last updated in October of 2021 by the Wex Definitions Team]