Recent Appeals Court Case Is A Reminder That A Lateral Transfer Could Be Viewed As An Adverse Action For Employment Discrimination Purposes

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Legal precedent is not entirely consistent regarding whether lateral transfers constitute adverse actions sufficient to support discrimination claims by affected employees.  However, a recent case from the Sixth Circuit serves as a reminder that a majority of federal courts see lateral transfers, even with no decreases in pay or benefits, as potential adverse actions sufficient to support discrimination claims.  In this case, a Hispanic plaintiff over the age of 40 brought age and race discrimination claims against his employer after he was transferred to another position within the company.  Notably, the position to which he was transferred was one for which he had previously applied.  The Sixth Circuit reversed summary judgment in favor of the employee at the district court level, finding that a jury must determine whether a reasonable person would consider the lateral transfer and its associated job duties as “objectively intolerable.”  In particular, the court relied on the fact that even though the plaintiff had previously applied for the position to which he was transferred, the working conditions after the transfer potentially exposed him to more gas fumes and other allegedly intolerable conditions.  In short, employers should consider transfer decisions as carefully and seriously as other decisions which can result in claims of discrimination.

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