That may be sugar coating it a bit.
A county employee, who applied for a lateral transfer, and ultimately received that transfer, was able to convince two judges on a federal appellate court that the transfer was discriminatory.
That’s right. An employee may have a discrimination claim for receiving the specific transfer he requested.
Here’s what the two-judge majority wrote in this opinion:
[W]e conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action…We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”
Let me stop there for a second to add that the plaintiff in this case testified that he viewed the transfer as improving his potential for career advancement. Still, that didn’t appear to matter much to the Sixth Circuit Court of Appeals:
Indeed, an employee’s opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as “adverse.”
For what it’s worth, one judge did dissent. I’m on board with his reasoning:
Deleon voluntarily applied for the job with full knowledge of its pros and cons, making it difficult to fathom how he could premise a claim of retaliation on the transfer alone. A retaliation claim requires the employer to do something bad to the employee–something that might “have dissuaded a reasonable worker from making or supporting a charge of discrimination.” That concept cannot be bent and stretched to cover an employer’s decision to grant an employee’s request for a transfer. No reasonable employee in Deleon’s position would have interpreted the transfer as an act designed to prevent him from exercising his rights against anti-discrimination.
And, thankfully, I practice in the Third Circuit Court of Appeals, where the employers I represent are not bound by the majority’s decision here.
For more on this decision, check out Jon Hyman’s post at the Ohio Employer’s Law Blog.