If you suspend an employee with pay, is that an adverse employment action? Funny you should ask as the Eleventh Circuit issued an opinion this week on this very subject. In this case, a former congressman sued his former employer, Legal Services Alabama, claiming that his suspension with pay during a pending investigation was race-based and a partial cause of his eventual resignation.

Parting of Ways 

Plaintiff had been serving as the Executive Director of Legal Services Alabama, a nonprofit firm providing legal services to low-income individuals. In 2017, LSA’s Executive Committee voted to suspend him, with pay, pending an investigation into complaints about actions he took without board approval and allegations of a hostile work environment. After informing him of the suspension, LSA posted a security guard outside the building and hired a political consultant to handle any PR issues.  Plaintiff then informed the board he was going to resign.

Suit Filed — Then Dismissed

Plaintiff filed suit against the LSA alleging that he was discriminated against because he is African American. He claimed that past high-ranking employees who were white had engaged in worse misconduct and received more favorable treatment.

LSA moved for summary judgment stating that Plaintiff had not been subjected to an adverse employment action (as he was suspended with pay) and that he was not constructively discharged. The district court agreed on both counts and dismissed the case.

What Constitutes an Adverse Employment Action?

The Eleventh Circuit, in affirming the lower court’s decision, focused on the definition of an adverse employment action. Both Title VII and Section 1981 race claims require that an employee suffer an adverse employment action as one of the elements of those claims. The court pointed to a definition of that term that such actions should “affect continued employment or pay–things like terminations, demotions, suspensions without pay, and pay raises or cuts.” The Eleventh Circuit went on to note that no other circuit has held that a simple paid suspension, in and of itself, constitutes an adverse employment action.

Plaintiff argued that the manner in which his suspension was handled, and the circumstances around it, combined to amount to an adverse employment action. The Eleventh Circuit did not agree and held that Plaintiff did not present adequate evidence to elevate his paid suspension to an adverse employment action.

Plaintiff further argued that even if his paid suspension was not an adverse employment action, his constructive discharge was. The court made short work of this argument by stating that because paid suspension alone is not an adverse employment action, an employee’s resignation in response to it cannot be an adverse employment action either.

What Have We Learned?

As the Eleventh Circuit points out in its opinion, paid suspension for an employee can be a helpful tool for an employer to hit “pause” and investigate when an employee has been accused of wrongdoing. As long as an employer engages in that practice in good faith, there should not be a problem. Problems can arise if paid suspension is seen to be a retaliatory practice because an employee reported a problem or discrimination, so be careful there.