Previously-Requested Transfer Could Be Adverse Employment Action

Author: Beth Zoller, XpertHR Legal Editor

March 3, 2014

A 6th Circuit Court of Appeals case (Deleon v. Kalamazoo County Road Commission) suggests that a lateral transfer, even if initially requested by an employee, may be considered an adverse employment action under federal antidiscrimination laws when the terms and conditions of the transfer are inferior to what the employee originally sought. Based on this case, any argument made by an employer in the course of defending a discrimination or retaliation claim that an employee previously applied to the position to which he was transferred may not serve as an absolute defense to liability, especially if the new position's working conditions could be considered intolerable.

In Deleon, a 53-year-old Hispanic male of Mexican descent was employed as an Area Superintendent, supervising road maintenance activities and overseeing repairs. Although the employee received positive reviews throughout his employment (a tenure of 28 years), he alleged that he suffered a hostile work environment.

The employee applied for the position of Equipment and Facilities Superintendent, believing that job to have better potential for career advancement. However, because that position would require him to work in a garage where he would be exposed to loud noises and diesel fuels, the employee alleged that he would have demanded a $10,000 salary increase if he had been offered the position to compensate for the hazardous working conditions.

Although the employee did not initially receive the position, he later was involuntarily transferred to the position, without a raise, as part of a larger reorganization. The employee believed that the transfer set him up to fail. The employee soon suffered bronchitis and other adverse health effects from the job that led him to be hospitalized and take eight months of FMLA leave. When he was cleared to return to work, the employer had already terminated him because the employee had exhausted his leave.

The employee filed suit against his employer alleging discrimination based on race, national origin and age. Although the district court sided with the employer (ruling that the employee had not suffered an adverse employment action), the 6th Circuit reversed.

The appeals court held that a lateral transfer may be considered an adverse employment action under certain circumstances. While a lateral transfer that does not affect pay, title or working hours generally may not be viewed as an adverse employment action, a job reassignment without changes in hours or salary may be adverse if it results in a demotion as evidenced by a "less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."

Whether a lateral transfer is materially adverse depends on the circumstances of the particular case and should be judged from the point of view of a reasonable person. Further, the court stated that even though the employee had previously applied for the same position, that fact alone did not preclude a jury finding that the transfer was a constructive discharge if it were "objectively intolerable to a reasonable person." This was true even though the employee previously requested the transfer, suffered no reduction in pay or benefits and viewed the job with increased potential for career advancement.

The 6th Circuit's decision may be appealed by the employer.