Yes, a written warning or counseling session will be considered presumptively adverse where: (a) it is considered discipline by policy or practice; (b) it is routinely used as the first step in a progressive discipline policy; or (c) it implicitly or expressly references potential discipline. See Williams v. American Airlines Inc., ARB No. 09-018, ALJ No. 2007-AIR- 004, slip op. at 10-11 (ARB Dec. 29, 2010).
Under the whistleblower protection provision of the Sarbanes-Oxley Act, a covered entity may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment” because the employee engaged in protected activity. 18 U.S.C.A. § 1514A(a). In Hendrix v. American Airlines, 2004-SOX-010; 2004-AIR-023 (Dec. 9, 2004), an ALJ found that “[t]he distinctive language of the Sarbanes-Oxley Act supports a broad reading of the meaning of adverse action for claims arising under this Act. . . . By explicitly prohibiting threats and harassment, the Sarbanes-Oxley Act has included adverse actions which are not necessarily tangible and most certainly are not ultimate employment actions.”