Job Transfers Can Constitute Discrimination Even If No Tangible Harm Is Suffered
Author: David B. Weisenfeld, XpertHR Legal Editor
June 6, 2022
Employees need not suffer tangible harm to bring a Title VII discrimination claim for the denial, or forced acceptance, of a job transfer, the DC Circuit Court of Appeals has ruled. This can hold true even if no there was no reduction in pay or benefits.
The federal appellate court's decision is significant as there is wide divergence among the courts when it comes to job transfers, and such splits often lead to Supreme Court review. At least four other federal appellate court have ruled that a showing of actual harm is needed.
For instance, the 7th Circuit has ruled that the transfer of a Black employee where his supervisor told him that he was being transferred to a different neighborhood because the company wanted to keep his workplace "predominantly Hispanic" did not violate Title VII because it insufficiently harmed the employee. However, the 6th Circuit has found that employees can sue their employees for discriminatory transfers so long as the resulting harm is more than "de minimis."
In the present case, Mary Chambers claimed that her employer repeatedly denied her transfer requests while granting them for similarly situated male employees. Chambers claimed these denials reflected both discrimination and retaliation.
In siding with the employee, the DC Circuit majority reasoned that discrimination means "any differential treatment" under Title VII. As a result, the court held there is no distinction between economic and non-economic discrimination, which will make it easier for employees in the DC Circuit to bring lawsuits for the denial of job transfers.
A dissenting judge wrote, however, that the ruling makes an "imperfect situation even worse" by allowing employees to sue over inconsequential injuries. He said the question should be whether the requested job transfer included objectively material differences in job responsibilities.