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Adverse Employment Actions

What is an Adverse Employment Action?

Adverse Employment ActionsAn adverse employment action is a significant negative action taking against you by your employer, such as being fired, demoted or passed up for a promotion. Under New Jersey employment law, adverse employment actions are legally actionable only if they violate one of your legal rights, such as if they are motivated by an illegal factor like unlawful discrimination or retaliation, or if they breach your employment contract

Below is an overview of some of the most common types of adverse actions that our New Jersey employment lawyers encounter.

Wrongful Termination

Perhaps the most common adverse employment action is wrongful termination (also known as wrongful discharge). It occurs when someone is fired for an illegal reason, such as because of their age, race, gender or disability. For more information, please see our wrongful termination page.

Constructive Discharge

Sometimes, instead of firing an employee, a company makes their working conditions so bad that the employee is forced to resign. This is called a constructive discharge or constructive termination.

Failure to Promote

Another common adverse employment action is a failure to promote. It is a violation of employment law in New Jersey if your employer uses a legally prohibited factor to deny you a promotion, or to promote someone else instead of you.

Failure to Hire

Employers frequently refuse to hire job candidates for illegal reasons. If you applied for a job and the company hired someone else because of your age, race, disability or another illegal reason, you could have a failure to hire claim.

Wrongful Demotion

Employers can use demotions as a way to discriminate against an employee or to punish a whistleblower. Demotions typically involve a reduction in your job title, job duties and/or compensation. However, employers sometimes try to disguise a demotion by simply reducing an employee’s responsibilities, or even taking away all of his or her duties, without changing his or her job title (a “constructive demotion” or "de facto demotion"). Likewise, whether or not it technically is a demotion, a significant reduction in one’s salary or benefits can be an adverse employment action which gives rise to a legal claim.

See our related article: Discriminatory Job Transfer Can be Actionable Without Significant Harm.

Transfer to a Less Desirable Position

Another way employers sometimes discriminate or retaliate against their employees is to transfer them to a less desirable job. This can be as extreme as transferring employees hundreds of miles from where they live, or to a position that has been scheduled to be eliminated in an upcoming reduction in force. Alternatively, it can be more subtle, such as moving an employee to a job that is considered less desirable or prestigious, has less supervisory responsibility, is incompatible with their skills and experience, or offers fewer opportunities for promotion or advancement.


Harassment is different from most other adverse employment actions because it is not a single event, like being fired or demoted. Instead, it is a pattern of bad behavior that, when considered as a whole, is comparable to a more tangible adverse employment action.

Like other adverse employment actions, under New Jersey employment law harassment is actionable only if it is due to your membership in a legally protected category such as your age, race, gender or disability, is a form of illegal retaliation, or violates another law. For example, sexual harassment is harassment that is motivated by your gender or sex.

Undeserved Discipline

Generally, unwarranted discipline such as an unfair and negative performance review or a disciplinary warning, on their own, are not considered adverse employment actions.  However, they can be part of a pattern of harassment.  More severe forms of discipline, such as demotions and unpaid suspensions, can be legally actionable on their own.

Contact an Employment Lawyer

If you have experienced an adverse employment action at your job, or have another claim relating to employment law in New Jersey, please feel free to contact us online or call our law office at (201) 777-2250 to schedule a consultation with one of our employment lawyers.

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"I worked with Jonathan Nirenberg, ESQ on a sensitive emotional employment matter. Mr. Nirenberg was quick to respond, offered excellent advice, and always followed up with phone calls or emails when needed. My situation was settled out of court within a short period of time with the best possible results for not just me but also for the employer. Highly recommend and would seek his help again if needed..." Linda Busch, PhD
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"I felt alone and without a voice, until I hired Jonathan I. Nirenberg of Rabner Baumgart Ben-Asher & Nirenberg, P.C. Mr. Nirenberg represented me in an employment matter. Without his help, I know that I would not have had the extremely successful outcome I had. Jonathan was not only professional, but very empathetic to what happened to me. Jonathan gave me support, and options in relation to a challenging employer/employment situation which was an extremely difficult time in my life..." Shelly Smith