The Employee’s Asking For It

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When an employee applies for, and gets, a job transfer, the employer has not subjected the employee to an adverse employment action – or has it? In a recent case, the plaintiff claimed he suffered an adverse employment action under Title VII and the ADEA when his employer transferred him to a more hazardous position – a position the employee had applied for. Although the plaintiff knew when he applied that he might not have all the required qualifications and that the position involved exposure to loud noises and diesel fumes, he later complained about the work conditions and asserted that the transfer was an attempt to set him up to fail, because he was unqualified for the job. The 6th Circuit Court of Appeals decided he had a point. A transfer might be an adverse employment action – even without a demotion and even though the plaintiff requested the transfer – if the conditions of the transfer would have been objectively intolerable to a reasonable person. Essentially, a transfer might be a constructive discharge, even when the employee asks for it. Deleon v. Kalamazoo County Road Commission, No. 12-2377 (6th Cir. January 14, 2014).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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