A "microaggression" is a subtle, often unintentional comment or action that conveys bias or discrimination against a marginalized group. For example, asking a person of color, "How did you get this job?" telling a colleague with an accent, "Your English is so good," or scheduling team-building activities at bars, knowing some employees don't drink for religious reasons.
In the right circumstances, however, microaggressions can also amount to an adverse action that supports a workplace retaliation claim.
Consider the recent case of Uchitel v. Solid Waste Services.
Alivia Uchitel, an office manager at a solid-waste transfer station, reported to general manager Jonathan Bartlett. Almost from day one, Bartlett subjected Uchitel to egregious sexual harassment—such as making a prank call from a fictitious customer to complain about a driver pleasuring himself in public and asking Uchitel if she was "ready to taste his meat," a crude joke about the sandwiches he brought for lunch.
When Uchitel complained to Bartlett’s superiors, he promised to keep the workplace professional and treat her with respect. She accepted that resolution.
Within days, however, she believed Bartlett began retaliating. She claimed he expressed visible annoyance toward her—yelling, speaking angrily, showing impatience, refusing to make eye contact, and reacting harshly to her questions. He also suggested she go on an optional ride-along with a driver and attend monthly safety meetings—neither of which had ever been part of her job.
The court denied the company's motion for summary judgment, sending Uchitel's retaliation (and other claims) to trial. A reasonable jury, the court said, could conclude that Bartlett’s actions—occurring within a week of Uchitel's complaint—were retaliatory.
Under Title VII, an "adverse action" in a retaliation claim is anything that could likely deter a reasonable employee from reporting discrimination or harassment. The court found that "a reasonable jury could find that in the week after Plaintiff complained about his sexually harassing conduct, Bartlett’s behavior"—which falls under the umbrella of microaggressions—"constituted a materially adverse action that would likely deter victims of discrimination from complaining."
The takeaway? Take employee complaints seriously, ensure everyone understands that even the smallest slight could be considered retaliation, and make it clear that retaliation will not be tolerated in your business. Microaggressions aren't always "micro." In the right context, they can have macro legal consequences.