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Lateral Transfers: 'Adverse Actions'?
Retaliation claims are the growth industry of employment discrimination law. According to the U.S. Equal Employment Opportunity Commission (EEOC), the number of reprisal charges filed with the agency has ballooned from under 11,000 in 1992 to more than 22,000 in 2002, rising steadily during that period from 15% to 27% of all EEOC charges. (EEOC, 'Charge Statistics: FY 1992 Through FY 2002,' www.eeoc.gov/stats/charges.html.)
One of the critical and frequently litigated issues in this area is determining what personnel actions constitute 'adverse employment actions' for purposes of establishing retaliation claims. While demotion and termination are the most obvious and legally recognized adverse employment actions, courts are ruling that under certain circumstances, even a purely lateral transfer can rise to the level of an adverse employment action.
Title VII of the Civil Rights Act of 1964, the most comprehensive federal anti-discrimination statute, prohibits employers from retaliating against an individual who has 'opposed' an employment practice made illegal under the statute (known as the 'opposition clause'), or 'made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing' under the statute (known as the 'participation clause'). Similar anti-reprisal provisions are contained in other federal, state and local fair employment laws.
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