Can You Discriminate By Making an Employee Do Less For the Same Money?
You decide to shift supervisory responsibilities away from one of your current supervisors to a new supervisor, but keep the old supervisor at the same rate of pay with the same job title. Could this be considered an adverse action that could support a discrimination claim?
Depending on the circumstances, an employee might be able to support a discrimination claim just based on the reduction of his responsibilities, even if he is receiving the same compensation and holding the same position. See Sessin v. Thsitledown Racetrack, LLC, Case No. 1:14-cv-01691 (ND. Oh. May 4, 2016).
Joseph Sessin was an accounting supervisor at a casino and racetrack in Ohio. Sessin suffers from a medical condition that causes hearing loss and so wears visible hearing aids. The casino’s finance director made a couple of comments that related to Sessin’s hearing, including saying she could never tell if he was hearing her and during an evaluation, asking him why he wasn’t looking at her if he could read lips. The finance director then allowed another supervisor to attend a training that Sessin wanted to attend and soon after, decided to transition all of the supervisory responsibilities away from Sessin and to another accounting supervisor.
Sessin ended up quitting and brought claims of discrimination under the ADA against the casino. One of Sessin’s claims was that the finance director effectively demoted him and replaced him with another accounting supervisor. The casino claimed that Sessin was never actually demoted because his title and pay did not change. The casino argued that because he did not suffer an adverse employment action, he could not argue that he was subjected to discrimination.
The court disagreed. The finance director’s own written notes indicated that Sessin was being transitioned out of a supervisory role. The accounting supervisor who was given Sessin’s supervisory responsibilities testified that the finance director told her that she would be the primary supervisor of the entire team. Sessin claimed that his responsibilities were diminished significantly and that instead of being a supervisor of a team, he was now working alongside this team, taking orders from the other accounting supervisor. This was not a case of the mere shifting of job responsibilities, but instead there was evidence presented that Sessin was entirely transitioned out of his job as a supervisor. This type of action could constitute an adverse action and if it could be linked to his disability, could support a claim for discrimination.
An employer might be tempted to argue that if an employee is being paid the same and maintaining the same title, it can’t be discriminatory to take away responsibilities. But, as this case illustrates, that isn’t necessarily the case. The removal of someone’s responsibilities, particularly supervisory responsibilities, can be considered an adverse action, even if the employee is still getting paid the same to potentially do less.