Wanza Cole, an African American woman, worked as an educator at the Wake County Board of Education in North Carolina from 1992-2015, where she eventually became a school principal in 2007. After claims of inadequate evaluation processes, Cole was transferred to work at the school’s central office in 2015. She sued the school board under claims of discrimination in Title VII of the Civil Rights Act of 1964. Ultimately, the Fourth Circuit upheld the district court’s ruling that her transfer did not constitute “adverse employment action,” lending to further discourse as to what exactly the term demands. Tragically, Cole passed away in a car accident on October 24, 2023, before necessary clarification could be made. Yet her death adds a sense of urgency to clarifying the ambiguity of “adverse employment action.” As seen in her case, a person’s career and future could be at stake at the hands of a single ill-defined concept.

“Adverse employment action” is considered so “if it materially affects the compensation, terms, conditions, or privileges of employment,” as dictated by Chuang v. University of California Davis, Board of Trustees. There exist three main issues with the use of the term in the judiciary, as I will demonstrate through three other cases.

Firstly, the application of “adverse employment action” de-emphasizes the role of the discrimination that takes place in cases. In Muldrow v. City of St. Louis, a female police officer was transferred from one division of the St. Louis Police Department to another solely based on her gender, and she argued that this was a Title XII employment discrimination claim. However, this gendered discrimination was functionally ignored when both the trial and appeal courts ruled that her transfer did not constitute an “adverse employment action” because she did not suffer any material disadvantages, such as decreased pay. Regardless of the court’s decision, “adverse employment action” puts little focus on the gender discrimination and the harms of discrimination qua discrimination that clearly did take place. Put another way, a focus on purely material disadvantages does nothing to undo systematic discrimination, arguably the point of the Civil Rights Act of 1964.

Secondly, the term “adverse employment action” is not used universally across different types of discrimination. In contrast to the gendered discrimination in Muldrow, Exby-Stolley v. Board of County Commissioners involved disability discrimination. Stolley’s workplace did not provide adequate accommodations for her disability. A three-judge panel of the US Court of Appeals for the Tenth Circuit initially ruled that she would have to prove “adverse employment action.” However, this was later overturned because the phrase “adverse employment action” does not appear in the Americans With Disabilities Act (ADA). The court further refused to equate any language in terms of employment in the ADA with “adverse employment action.” Thus, in an en banc decision, the Tenth Circuit concluded that Stolley would not have to prove that she suffered an “adverse employment action” as consistent with other sister circuit precedents. Yet this seems to show that there is an irregularity across different types of discrimination concerning when the term should be used and what standards it holds, putting rulings on dangerously unstable ground.

Lastly, even when “adverse employment action” must be proven, the standards of what constitutes the term are inconsistent, as shown in Rodriguez v. Bd. of Ed. of Eastchester U. Free. Art teacher Dr. Carmen Rodriguez’s forced transfer to an elementary school based on her gender was considered an “adverse employment action” on the basis of sex discrimination. Rodriguez argued that the transfer was a waste of her skills and the time she spent cultivating her middle school curriculum, therefore affecting her status. Yet the court ruled this an “adverse employment action” even after determining that there was no material effect because this transfer “[did] not and will not diminish [Rodriguez’s] salary; [did] not and will not reduce her benefits, her seniority rights, or add any increased load to her work performance.” In this way, the standards to meet “adverse employment action” across cases and types of discrimination are variable.

It seems that the court ruled correctly in Rodriguez. I believe that “adverse employment action” should not merely refer to material effects. The term should consider personal detriment, as is determined by judicial discretion. 

Consider another case. In Cole v. Wake County Board of Education, Cole had two possible avenues to prove that she was unfairly transferred because of racial discrimination. The first way was to provide evidence for direct discrimination, but Cole opted for the second way—to prove “adverse employment action” since she could not prove the first sufficiently. The court rejected her claim on the grounds that she did not suffer material changes. The district court held that Cole’s “perception of the new position as a demotion is close to irrelevant;” however, the same was not true for Rodriguez v. Board of Education. The Second Circuit in this case “explained that ‘job discrimination may take many forms,’” which in Rodriguez’s case was that the investment of twenty years in building her artistic curriculum would have gone to waste. Furthermore, Rodriguez claimed that her skillset was completely oriented towards working with junior high students in comparison to elementary school students; working at the elementary school would further render her skills useless. 

The main difference between the two cases is that Rodriguez was able to provide evidence that her job went to a less qualified male. In Cole’s case, she was unable to prove a racial connection between her transfer and its benefactor, who ultimately was a white male. Regardless, these cases are used as examples of “adverse employment action” and its varied standards. Yet Cole should have been treated in the same way as Rodriguez. Like Rodriguez, Cole had been a principal at the school for approximately eight years and worked intimately with the student body in the district for twenty. Working at a district office was a completely new setting, rendering her skillset of close communication with students and parents useless. Furthermore, Cole’s transfer caused her mental health issues, and she was diagnosed with post-traumatic stress disorder, anxiety, and depression. Such issues should have been taken into consideration because they wholly represent “adverse employment actions.” 

What is a better solution? One option is to define “adverse employment action” as “actions by an employer or employment that caused harm to an employee.” This allows the term to be interpreted holistically and incorporate personal circumstances. Furthermore, the term would place more emphasis on the discrimination that took place, if it did. More would need to be done to understand the grandeurs of what counts as “harm,” but this change would be a step in the right direction.

For Cole, the fight to expand what counts as an “adverse employment action” has come too late. That does not mean we should stop striving for change. Cole was a leader in her community, one to whom female students of color looked as a role model. Allowing the term to wallow in its obscurity does injustice to Cole’s legacy and will harm many more like her to come. A simple definitional change could stop this.