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A transfer denial can give rise to discrimination lawsuit

Employees who experience discrimination or bias from a supervisor are in a difficult situation. While discrimination is prohibited under Title VII of the Civil Rights Act, many employees prefer to first explore alternatives to litigation. One alternative is to seek a lateral transfer to move into a better work environment.

Such a move often requires the offending supervisor to sign off on the transfer, but a supervisor may deny approval for discriminatory reasons. It is not always clear that a denial of a lateral transfer qualifies as an adverse employment action under Title VII. The U.S. Circuit Court of Appeals in Washington, D.C., recently issued an opinion on this matter.

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"Adverse employment action" at issue

To win a workplace discrimination lawsuit, an employee must show that the employer took adverse employment action against that employee. A typical example of an adverse employment action is denying an employee a promotion based on an employee's protected class, including race, religion and gender, among others.

The case before the Washington, D.C., court arose when a federal employee requested a lateral transfer after hearing his supervisor refer to minority workers as "hired help" and saying that all Hispanic people looked alike, among other actions. The employee felt that the supervisor fostered a discriminatory work environment.

The employee decided to request a transfer out of the office. The request, if granted, would have resulted in the same position in a new state, under a new supervisor, with the same pay and benefits. The request was denied without explanation. A few months later, the employee resigned to take a lower-paying position and filed a lawsuit.

The United States District Court for the District of Columbia dismissed the lawsuit at the request of the U.S. government, finding that the denial of a lateral transfer did not qualify as an adverse employment action. The U.S. Circuit Court of Appeals heard the case and disagreed, finding that preventing an employee from getting out from a bad career situation did qualify and was unlawful under Title VII.

Why it matters

While a case out of the D.C. Court of Appeals is not binding for New York courts, the case is in line with a similar decision by the United States Court of Appeals for the 2nd Circuit, which has jurisdiction over federal cases in New York.

The trend seems to be that denying a lateral transfer may qualify as an adverse employment action. As such, employees who are denied a request for a lateral transfer for discriminatory reasons may be able to successfully file a discrimination lawsuit in New York.

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