Labor and Employment

Action Item: The U.S. Court of Appeals for the Third Circuit held that a suspension with pay, standing alone, does not constitute an adverse employment action under Title VII and the Pennsylvania Human Relations Act ("PHRA"). 

On August 12, 2015, the Third Circuit issued its opinion in Jones v. Southeastern Pennsylvania Transportation Authority, holding that a paid suspension “typically” is not an adverse employment action within the meaning of Title VII of the 1964 Civil Rights Act and the PHRA.  The court explained that “[a] paid suspension is neither a refusal to hire nor a termination, and by design, it does not change compensation.  Nor does it effect a ‘serious and tangible’ alteration of the ‘terms, conditions, or privileges of employment,’ because ‘the terms and conditions of employment ordinarily include the possibility that an employee will be subject to an employer’s disciplinary policies in appropriate circumstances.’”  The court also suggested that a paid suspension could still rise to the level of an adverse employment action if the suspension was “atypical,” but did not set forth any test or methodology to determine whether a paid suspension was “typical” or “atypical.”

In so holding, the Third Circuit joined the Second, Sixth, and Eighth Circuits, all of which had held previously that paid suspensions, without more, are not adverse employment actions under Title VII.  A number of other courts of appeal, including the Fourth and Fifth Circuits, have held similarly that paid suspensions generally are not adverse actions for the purpose of other statutory and constitutional retaliation claims.