Can a lateral employment transfer, specifically one requested by an employee, be an adverse employment action that triggers potential liability for an employer under federal antidiscrimination laws? In a recent decision, Deleon v. Kalamazoo County Road Commission, the United States Court of Appeals for the Sixth Circuit held that such a lateral transfer, even where initially requested by an employee, may be considered an adverse employment action when the terms and conditions of the transfer are intolerable. In setting forth this standard, the Court of Appeals stated, a “transfer may constitute a materially adverse employment, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability.”
In Deleon, the plaintiff was a fifty-three year old Hispanic male of Mexican descent. He worked as an Area Superintendent for the defendant. In this job, the plaintiff supervised road maintenance activities and repairs. In 2008, the employee applied for the position of Equipment and Facilities Superintendent, which would have been a lateral transfer. The plaintiff applied for this job because he believed that the position of Equipment and Facilities Superintendent would provide him with a better potential for career advancement. The posting for the open position specifically described the working conditions in the position as “primarily in the office and in garage where there is exposure to loud noises and diesel fumes.” While the plaintiff did not initially receive the position, the individual who did receive the position left it shortly thereafter. Upon not initially receiving the position, the plaintiff complained to his supervisors. However, in 2009, the plaintiff was transferred to the Equipment and Facilities Superintendent position. Shortly after receiving the position he had originally sought, the plaintiff began to complain about the diesel fumes and alleged that he suffered from bronchitis and sinus headaches as a result of the working conditions. Ultimately, the employee was hospitalized for adverse health effects and stress that he attributed to his working conditions. The plaintiff then took eight months of FMLA leave. When he was cleared to return to work, he discovered that his employer had already terminated him because he had exhausted his leave.
Following this, the plaintiff sued the employer asserting claims for race, national origin, and age discrimination. In his Complaint, the plaintiff claimed that the job transfer was an adverse employment action, in that he was set up to fail. In granting summary judgment to the employer, the District Court determined that transferring an employee to a position the employee applied for was not an adverse action.
On appeal, the Court of Appeals stated that generally reassignments without changes in salary, benefits, or title would not be considered an adverse employment action. However, the Court of Appeals indicated that a job transfer could perhaps be considered an adverse employment action where it constitutes a constructive discharge. Under this analysis, the Court of Appeals noted that for an employee to show that he/she had been constructively discharged as a result of a job transfer, the employee must show that the working conditions in the new position would be objectively intolerable to a reasonable person. In this specific case, the Court of Appeals determined that the plaintiff had effectively shown that his working conditions were objectively intolerable.
In dissent, Judge Sutton describes the very difficult position employers now face. As Judge Sutton stated: “Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer.” Judge Sutton further described the Hobson ’s choice now facing employers, where an employer gives an employee exactly what the employee requests, a job transfer, yet under the majority’s analysis, the employee may still have a cognizable claim. According to Judge Sutton, “It follows under the majority’s analysis that, when the employer denies what the employee wants, he also has a cognizable claim.”
As a result of this decision, employers, defending a discrimination or retaliation claim, cannot simply assert that the employee previously requested the new position as an absolute defense to liability in a case where the employee is alleging that a transfer represents an adverse employment action. It is possible that the employer in this case may appeal to the United States Supreme Court asking it to weigh in on this important issue. Employers should follow these important developments and keep them in mind as they transfer employees laterally, even at the employee’s request.