January 28, 2026

By: Gaetan J. Alfano , Mark T. Sottile

Employment discrimination lawsuits are almost invariably triggered by an “adverse action.” The standard burden-shifting framework for a plaintiff to prove her prima facie Title VII discrimination case reads: A plaintiff must present sufficient evidence that she was: 1) a member of a protected class; 2) qualified for the position; 3) suffered an adverse employment action; and 4) under circumstances giving rise to an inference of discrimination. See Jones v. School District of Philadelphia, 198 F.3d 403 at 410-411 (3d Cir., 1999); Boykins v. Lucent Tech., Inc., 78 F.Supp.2d 402, 409 (E.D.Pa.2000); see also In re Carnegie Ctr. Assocs., 129 F.3d at 294-295 (citations omitted).

Most often, an adverse employment action in the employment discrimination context is a termination. However, there are other types of adverse employment actions, which can help a plaintiff satisfy her prima facie burden. For example, if a plaintiff was demoted, passed over for a position, and/or suspended without pay, there may be an actionable case. Sherrod v. Philadelphia Gas Works, 57 Fed.Appx. 68, 73 (3d Cir.2003), quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998).

Not every negative incident, even if inflicted upon an employee who has complained of discrimination or is a member of a protected class, constitutes an adverse action. “Though a boss may be nasty, nastiness alone does not violate the law.” Brickhouse v. Philadelphia Sch. Dist., No. 24-1749, 2025 WL 1577567 (3d Cir. June 4, 2025). Here are some examples which courts have determined did not rise to the level of an adverse employment action:

• Being yelled at by a supervisor;
• Receiving work related criticism;
• Enduring intense scrutiny, including of one’s work product;
• Receiving condescending comments from a supervisor;
• Having one’s office moved down the hallway;
• Being denied selective training;
• Working in an unheated room;
• Being ignored by one’s colleagues;
• A supervisor staring at you;
• A supervisor scowling at you;
• A supervisor ignoring you; and
• Being ignored by colleagues.

These incidents, however unpleasant, have been found insufficient to prove a prima facie discrimination claim.

Conclusion and General Advice

Courts across the country, including here in the Third Circuit, will look carefully at the purported action which precipitated a retaliation claim. While examples like a termination or demotion to a lesser-paying job are clear-cut adverse actions and sufficient to prove a critical component of virtually any discrimination and/or retaliation claim, other cases are far more fact specific. Still, absent economic losses, from  a review of Third Circuit retaliation cases, there must be a resulting “materially” adverse change to the plaintiff’s employment status, like a transfer to an undesirable role or a lengthy suspension with pay that nonetheless puts the employee at a quantifiable disadvantage for a future promotion. Though being yelled and cursed at vociferously by your boss or suddenly provided with a rickety chair and wobbly desk by human resources because you complained of discrimination would likely deter a reasonable person from engaging in protected conduct, these are not the type of actions that courts tend to find “materially” adverse so as to comprise part of a viable retaliation claim.