Promptly Paying Employee Backpay Negates Adverse Employment Action For Failure To Promote

Jackson v UPS, ___F.3d___ (8th Cir. December 4, 2008), is an important Title VII decision. The 8th held that a black female employee who was demoted after she caused an accident on her first day in her new job failed to make out Title VII race and sex discrimination. The employee did not sustain an adverse employment action, the court found, since her employer promptly recognized that it erred in demoting her and reinstated her to the position with full back pay. Rescinding a prior employment action will not always shield an employer from liability, the court stressed, because it "would permit employers to escape Title VII liability merely by correcting their discriminatory acts after a significant amount of time has passed or only when litigation has been threatened." However, "a demotion or denial of a promotion, even when accompanied by a loss in pay, is not an adverse employment action when it is corrected in a timely manner." In this case, within three months of its decision to demote (which included both a union grievance and the employee's EEOC charge), the employer recognized its mistake, took corrective action and reinstated the employee with full back pay and no loss of seniority or any other employment benefit. The only damages that might remain were interest on her back pay and stress resulting from the demotion. Those damages, however, did not "produce[] a material employment disadvantage."

I am not sure that the court is correct here. emotional distress damages can be significant and plaintiff also lost interest. I believe there are appellate cases out there that conflict with this decision.

Mitchell H. Rubinstein