A Reprimand Usually Is Not Retaliation

A plaintiff claiming retaliation generally must: (1) engage in protected activity (e.g., an internal complaint of discrimination or participate in an Equal Employment Opportunity Commission (EEOC) proceeding); (2) suffer a materially adverse employment action; and (3) demonstrate a nexus between (1) and (2).

In a recent decision from the Seventh Circuit Court of Appeals (Illinois) involving a plaintiff who complained about sexual harassment and later received a written reprimand for supposedly calling her coworker a "trick" (slang for prostitute).

The sexual harassment complaint satisfies the first element of a retaliation claim, and the plaintiff argued that the defendant reprimanded her because she complained (and not for the "trick" incident).

But, you would like to focus on the second element, namely, whether a written reprimand is a material adverse employment action.

It is not.

As the Seventh Circuit noted, "a documented reprimand alone is not an adverse action absent some tangible job consequence. [...] The reprimand here 'did not come with a low performance rating or even a pay cut.' It only stated that it could be used in determining an appropriate penalty if further misconduct occurred."

But could not a written reprimand be an essential step towards termination?

Yes, but independently, oral or written reprimands, as part of progressive discipline, generally do not implicate job consequences tangible enough to establish an independent basis for liability under anti-discrimination statutes like Title VII of the Civil Rights Act of 1964 (Title VII). The exception would be if the employee suffers some immediate consequence, like ineligibility for job benefits. Otherwise, corrective action can prompt employees to improve their performance. And that is a good thing.

Since the plaintiff in this case could not identify any immediate consequence of the reprimand other than it brought her closer to termination, it was not a materially adverse action, and her retaliation claim failed.