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Viewpoint: Paid suspensions are not adverse employment actions, court rules

Viewpoint: Paid suspensions are not adverse employment actions, court rules

An employee, suspended with pay while the employer investigated alleged misconduct, filed a lawsuit against the employer alleging discrimination. The federal 11th Circuit Court of Appeals (which has jurisdiction over Florida, Alabama, and Georgia) was tasked with determining whether the suspension was enough to constitute racial discrimination.

Background

The employee had been serving as an executive director for a nonprofit since 2016. The executive committee voted to suspend the employee, with pay, pending an investigation into complaints about actions he took without approval and allegations of a hostile work environment.  After informing the employee of the suspension, the employer posted a security guard outside the building and hired a consultant to handle any public relations issues. A few days after the suspension, the employee informed the employer he was going to resign.

The employee filed suit in federal court against the employer alleging race discrimination under Title VII and Section 1981 as well as constructive discharge. He claimed that past high-ranking employees who were white had engaged in worse misconduct and received more favorable treatment. The federal district court dismissed the case because it found that the employee was not subject to an adverse employment action.  The employee appealed the dismissal to the federal Eleventh Circuit Court of Appeals.

Appellate Court’s decision

The 11th Circuit concentrated on the definition of an adverse employment action.  Both Title VII and Section 1981 race claims require that an employee suffer an adverse employment action as one of the elements of those claims.  The court pointed to a definition of adverse employment actions that provides that adverse employment actions are events that “affect continued employment or pay–things like terminations, demotions, suspensions without pay, and pay raises or cuts.”

The employee argued that the circumstances surrounding his suspension, including having a security guard at the door, his position as an executive director, and compiling a list of reasons for the suspension in a letter to the employee, and not just the suspension itself, constituted an adverse employment action.  The Eleventh Circuit disagreed as the employer’s actions in hiring a guard and compiling a list of reasons for the suspension in a letter to the employee were reasonable and not out of the ordinary.  Further, there was no case law to support the notion that whether an action constitutes an adverse employment action should depend on whether the employee is high-ranking in the organization.

The employee further argued that even if his paid suspension was not an adverse employment action, his ultimate resignation amounted to a constructive discharge and was an adverse employment action. The court disagreed with the employee’s argument and dismissed it by stating that because a paid suspension alone is not an adverse employment action, an employee’s resignation in response to it cannot be an adverse employment action either.

Accordingly, the 11th Circuit found that the circumstances of the paid suspension did not rise to the level of an adverse employment action and upheld the dismissal of the lawsuit.

Takeaway

As the 11th Circuit points out, a paid suspension can be a useful tool for an employer to hit “pause” and investigate when an employee has been accused of misconduct or other wrongdoing.  A paid suspension may be particularly useful where the employee under investigation supervises or otherwise works directly with the employees who are the complainant or the potential witnesses.  Employers must keep in mind that employees may be uncomfortable and not as cooperative as they may otherwise be during the investigation when the person under investigation is physically present and perhaps looking over their shoulders. Additionally, regardless of who the employee under investigation is, employers must remember to follow established company policy when investigating claims of misconduct in the workplace.

R. Eddie Wayland is a partner with the law firm of King & Ballow.  You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com.  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.


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21 December 2021, 16:00