Administrative Leave as an Adverse Action for Title VII Retaliation: New Principles for Liability Call for New Updates to Policy
Cormier, Zachary R.
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The time has come for employers and their attorneys to recognize that placing an employee on paid administrative leave, pending an investigation (or otherwise), has become a riskier proposition under Title VII of the Civil Rights Act of 1964. Numerous courts have held that a paid administrative leave, in most cases, will not constitute an “adverse employment action” as required by Title VII’s discrimination provision. But herein lies the danger for employers making the decision on a paid administrative leave– such relative security no longer applies to retaliation claims under Title VII. The warnings from federal circuit courts over the past decade of using broad principles to find that a paid administrative leave is a sufficient adverse action under the retaliation provision of Title VII have recently been confirmed by the Ninth Circuit in Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013) and by other district courts. Employers must respond accordingly and incorporate modern principles regarding administrative leave into their policies and decision making processes. The current danger is that many employers may still view the potential liability, which comes from placing an employee on paid administrative leave within the relative security that has come from the vast majority of courts finding that such leave does not constitute an adverse employment action for Title VII discrimination claims. Dahlia is a wake-up call for employers. Employers and their attorneys must acknowledge the much different (and in many senses lower) standard for finding a sufficient adverse action in a Title VII retaliation claim involving paid administrative leave. This Article will explain the adverse action standard established by the Supreme Court in Burlington Northern, 548 U.S. 53 (2006) for retaliation claims under Title VII. This Article will then explore the various factors of an administrative leave which federal circuit and district courts have found are more likely to justify a sufficient adverse action for a retaliation claim. Based upon such case law, this Article will conclude with recommendations regarding how employers should incorporate modern principles regarding administrative leave into their policies and decision making processes.