EMPLOYER DISCRIMINATION; ADVERSE ACTIONS – In General

Single Topic for Decision 2712M

View all topics for Decision 2712M

Full Decision Text (click on the link to view): Full Text

PERB uses an objective test to determine whether an employer’s action is adverse. The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact on the employee’s employment. The Office of the General Counsel correctly found that union alleged the employer took adverse actions against employee by not promoting her to an open, more highly paid position, and by issuing her a notice of intent to suspend. In addition, PERB found that union alleged the following adverse actions: (1) failing to encourage employee to take the promotional exam while encouraging her counterparts to do so; (2) failing to notify employee how she could be accommodated to interview for an open position during a period when she would be out on disability; and (3) delaying meeting with employee and declining to provide timely and accurate information concerning the recruitment. A reasonable person in the employee’s circumstances would view such alleged actions as adverse to her employment for multiple reasons, including because they impeded her efforts to progress in her career and suggested any effort on her part to apply for one of the promotional positions would be disfavored. (pp. 19-20.)