Lateral Transfers: 'Adverse Actions'?

To establish a prima facie case of retaliation under the civil rights laws, the plaintiff must show: 1) he or she engaged in protected activity; 2) he or she suffered an adverse employment action; and 3) there was a causal link between her protected activity and the adverse employment action. See, for example, Bass v. Bd. Of County Commissioners, 88 FEP Cases (BNA) 205 (11th Cir. 2001).

A number of courts have held that a purely lateral transfer ' a transfer that does not involve a decrease in pay or benefits ' does not rise to the level of an adverse employment action. See, for example, Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir. 1997). 'Otherwise,' the Seventh Circuit has written, 'every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.' Williams v. Bristol-Myers Squibb Co., 85 F.3d 270 (7th Cir. 1996).

Subjective Preference

Moreover, a subjective preference for one position over another is not generally sufficient to show an adverse change in working conditions. In Ticali v. Roman Catholic Archdiocese, 41 F. Supp. 2d 249 (E.D.N.Y. 1999), the court found that a parochial school teacher did not suffer an adverse employment action, for the purpose of making out a prima facie case of retaliation, when she was transferred from teaching first grade to teaching pre-kindergarten. The plaintiff alleged that teaching pre-kindergarten is 'not the same' as teaching a higher grade because she enjoyed teaching children reading, mathematics and other subjects that simply are not taught at the lower levels. The court ruled that the transfer did not disadvantage her in any legally cognizable way and that dissatisfaction with the transfer, standing alone, did not support her claim of an adverse employment action. (See also, Perryman v. West, 949 F. Supp. 815 (M.D. Ala. 1996), stating that 'an employment action ' is not adverse merely because the employee dislikes or disagrees with it.')

Minor Job Changes

Similarly, it is well established that a transfer involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action. Jones v. Fitzgerald, 285 F.3d 705 (8th Cir. 2002). In addition, the fact that an employee must learn as a result of the transfer does not mean that the transfer is per se adverse. In Doe v. Kekalb Count School District, 145 F.3d 1441 (11th Cir. 1998), the court noted that '[a]ll transfers require some learning, since they require employees to work with new people or products and to assume new responsibilities.' Likewise, transfer to a job with 'some modest stress' does not turn a purely lateral transfer into an adverse employment action. Boone v. Goldin, 178 F.3d 253 (4th Cir. 1999).

Physically Demanding Jobs

One appellate court has even ruled that a transfer to a more physically demanding job, with no decrease in salary or benefits, is not an adverse job action that could be the basis of a Title VII retaliation claim. In White v. Burlington Northern & Santa Fe Fy. Co., 310 F.3d 443 (6th Cir. 2002), the court held that an employee's lateral transfer from forklift duty to more physically demanding track labor duties after complaining of sex discrimination was not an adverse employment action. Judge Gwin noted that the plaintiff had been hired as a track maintenance worker and one of her explicit job responsibilities was to maintain railroad tracks. 'We fail to see how [the plaintiff] suffered an adverse employment action by being directed to do a job duty for which [her employer] hired her.'

Some courts are ruling, though, that certain types of disadvantageous transfers that do not involve a decrease in pay or benefits can nonetheless constitute an adverse employment action. An example of such a transfer is one that is significantly less suited to one's skills and training. In Rodriguez v. Board of Education, 620 F.2d 362 (2nd Cir. 1980), for instance, the Second Circuit held that the district court erred in dismissing the sex discrimination suit of a junior high school art teacher who was transferred to an elementary school in the same system, notwithstanding the fact that the transfer did not entail a reduction of salary or other monetary benefits. It emphasized that the plaintiff had spent her entire career teaching junior high school students, and in fact had recently earned a doctoral degree in art education with a focus on programs for such students. The art programs at the elementary level, the court explained, 'were so profoundly different from those in the junior high school as to render utterly useless [the plaintiff's] 20 years of experience and study in developing art programs for middle school children.' Describing the transfer as 'a severe professional trauma,' the court concluded that such a 'radical change in the nature of the work [the plaintiff] was called upon to perform' constituted an adverse employment action.

Impact on Future Employment

Transfers that have no immediate impact, but that could negatively affect future employment opportunities or advantages may also rise to the level of an adverse employment action. In De La Cruz v. NYC Human Resources Administration, 82 F.3d 16 (2nd Cir. 1996), an employee was transferred from the Adoption Unit, an 'elite' division that provided prestige and opportunity for advancement, to the Foster Unit, a less prestigious unit with little opportunity for professional growth. In reversing summary judgment in favor of the defendant, the court found that the transfer could constitute a legally cognizable adverse action. Citing Rodriguez v. Board of Education, the Second Circuit stated that the protections provided by Title VII are not limited to 'instances of discrimination in pecuniary emoluments.' (See also, Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999), finding that the transfer of a police officer from mounted patrol to a teaching position could constitute a cognizable adverse action where the new position proved objectively worse ' such as providing less room for advancement.)

What if the Employee Cannot Perform the New Position?

A purely lateral transfer may also be considered an adverse employment action if the employer knows the employee cannot perform in the new position. For example, in DiIenno v. Goodwill Industries, 162 F.3d 235 (3rd Cir. 1998), the plaintiff was employed as a 'tagger,' pricing clothes. Two years into her job, the store manager began sexually harassing her. The plaintiff complained to the sales manager and human resources director, but she was criticized for not being 'supportive of management' and was reassigned as a 'processor,' which involved unloading bags that were delivered. She told her new manager that she could not do this work as she was extremely phobic of finding 'critters' that were often in the donation bags, but she was ordered to perform this work anyway, even after she provided medical documentation.

The district court rejected her retaliation suit, alleging that her transfer to processor from tagger was a lateral move and thus not an adverse employment action. The circuit court found that this was error, holding that a plaintiff's 'job-related attributes' must be taken into account when determining whether a lateral transfer was an adverse employment action. Since the defendant assigned this work to the plaintiff knowing that she could not do it, it could be considered an adverse employment action, at least sufficient to present the issues for jury resolution.

Similarly, the Second Circuit ruled that reassignment to a job requiring a five-story climb could be retaliatory if the employer knew of the employee's difficulty climbing stairs. Bernheim v. Litt, 79 F.3d 318 (2nd Cir. 1996). In this case, the court noted that the transferred employee had a herniated disc, a bulging disc, a fractured right knee, and a loose body in the left knee.

A lateral transfer may also constitute an adverse employment action if it endangers, or potentially endangers, the employee's life. In Strouss v. Michigan Department of Corrections, 250 F.3d 336 (6th Cir. 2001), the court ruled that a factual issue existed as to whether a lateral transfer of a prison nurse to another part of the prison constituted an adverse employment action in retaliation for her complaints of sexual harassment in view of her allegation that some inmates housed in that facility made threats against her.

In light of recent court rulings, it cannot be assumed that a purely lateral transfer following an employee's protected activity will not rise to the level of an adverse employment action under the civil rights laws. A transfer that alters the terms and conditions of an individual's employment in some negative way may satisfy the second prong of the prima facie test for retaliation claims. Management, therefore, should consult with officials knowledgeable about equal employment opportunity law prior to making these personnel decisions. In addition, managerial EEO training should include a component on retaliation, which discusses the broad scope of 'adverse employment actions.'

Eric Matusewitch, PHR, CAAP, is Deputy Director of the New York City Equal Employment Practices Commission, and author of The Manager's Handbook on Employment Discrimination Law (Andrews Publications, 2000).

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.

To establish a prima facie case of retaliation under the civil rights laws, the plaintiff must show: 1) he or she engaged in protected activity; 2) he or she suffered an adverse employment action; and 3) there was a causal link between her protected activity and the adverse employment action. See, for example, Bass v. Bd. Of County Commissioners, 88 FEP Cases (BNA) 205 (11th Cir. 2001).

A number of courts have held that a purely lateral transfer ' a transfer that does not involve a decrease in pay or benefits ' does not rise to the level of an adverse employment action. See, for example , Ledergerber v. Stangler , 122 F.3d 1142 (8th Cir. 1997). 'Otherwise,' the Seventh Circuit has written, 'every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.' Williams v. Bristol-Myers Squibb Co. , 85 F.3d 270 (7th Cir. 1996).

Subjective Preference

Moreover, a subjective preference for one position over another is not generally sufficient to show an adverse change in working conditions. In Ticali v. Roman Catholic Archdiocese , 41 F. Supp. 2d 249 (E.D.N.Y. 1999), the court found that a parochial school teacher did not suffer an adverse employment action, for the purpose of making out a prima facie case of retaliation, when she was transferred from teaching first grade to teaching pre-kindergarten. The plaintiff alleged that teaching pre-kindergarten is 'not the same' as teaching a higher grade because she enjoyed teaching children reading, mathematics and other subjects that simply are not taught at the lower levels. The court ruled that the transfer did not disadvantage her in any legally cognizable way and that dissatisfaction with the transfer, standing alone, did not support her claim of an adverse employment action. ( See also, Perryman v. West , 949 F. Supp. 815 (M.D. Ala. 1996), stating that 'an employment action ' is not adverse merely because the employee dislikes or disagrees with it.')

Minor Job Changes

Similarly, it is well established that a transfer involving only minor changes in working conditions and no reduction in pay or benefits will not constitute an adverse employment action. Jones v. Fitzgerald , 285 F.3d 705 (8th Cir. 2002). In addition, the fact that an employee must learn as a result of the transfer does not mean that the transfer is per se adverse. In Doe v. Kekalb Count School District , 145 F.3d 1441 (11th Cir. 1998), the court noted that '[a]ll transfers require some learning, since they require employees to work with new people or products and to assume new responsibilities.' Likewise, transfer to a job with 'some modest stress' does not turn a purely lateral transfer into an adverse employment action. Boone v. Goldin , 178 F.3d 253 (4th Cir. 1999).

Physically Demanding Jobs

One appellate court has even ruled that a transfer to a more physically demanding job, with no decrease in salary or benefits, is not an adverse job action that could be the basis of a Title VII retaliation claim. In White v. Burlington Northern & Santa Fe Fy. Co. , 310 F.3d 443 (6th Cir. 2002), the court held that an employee's lateral transfer from forklift duty to more physically demanding track labor duties after complaining of sex discrimination was not an adverse employment action. Judge Gwin noted that the plaintiff had been hired as a track maintenance worker and one of her explicit job responsibilities was to maintain railroad tracks. 'We fail to see how [the plaintiff] suffered an adverse employment action by being directed to do a job duty for which [her employer] hired her.'

Some courts are ruling, though, that certain types of disadvantageous transfers that do not involve a decrease in pay or benefits can nonetheless constitute an adverse employment action. An example of such a transfer is one that is significantly less suited to one's skills and training. In Rodriguez v. Board of Education , 620 F.2d 362 (2nd Cir. 1980), for instance, the Second Circuit held that the district court erred in dismissing the sex discrimination suit of a junior high school art teacher who was transferred to an elementary school in the same system, notwithstanding the fact that the transfer did not entail a reduction of salary or other monetary benefits. It emphasized that the plaintiff had spent her entire career teaching junior high school students, and in fact had recently earned a doctoral degree in art education with a focus on programs for such students. The art programs at the elementary level, the court explained, 'were so profoundly different from those in the junior high school as to render utterly useless [the plaintiff's] 20 years of experience and study in developing art programs for middle school children.' Describing the transfer as 'a severe professional trauma,' the court concluded that such a 'radical change in the nature of the work [the plaintiff] was called upon to perform' constituted an adverse employment action.

Impact on Future Employment

Transfers that have no immediate impact, but that could negatively affect future employment opportunities or advantages may also rise to the level of an adverse employment action. In De La Cruz v. NYC Human Resources Administration , 82 F.3d 16 (2nd Cir. 1996), an employee was transferred from the Adoption Unit, an 'elite' division that provided prestige and opportunity for advancement, to the Foster Unit, a less prestigious unit with little opportunity for professional growth. In reversing summary judgment in favor of the defendant, the court found that the transfer could constitute a legally cognizable adverse action. Citing Rodriguez v. Board of Education, the Second Circuit stated that the protections provided by Title VII are not limited to 'instances of discrimination in pecuniary emoluments.' (See also, Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999), finding that the transfer of a police officer from mounted patrol to a teaching position could constitute a cognizable adverse action where the new position proved objectively worse ' such as providing less room for advancement.)

What if the Employee Cannot Perform the New Position?

A purely lateral transfer may also be considered an adverse employment action if the employer knows the employee cannot perform in the new position. For example, in DiIenno v. Goodwill Industries , 162 F.3d 235 (3rd Cir. 1998), the plaintiff was employed as a 'tagger,' pricing clothes. Two years into her job, the store manager began sexually harassing her. The plaintiff complained to the sales manager and human resources director, but she was criticized for not being 'supportive of management' and was reassigned as a 'processor,' which involved unloading bags that were delivered. She told her new manager that she could not do this work as she was extremely phobic of finding 'critters' that were often in the donation bags, but she was ordered to perform this work anyway, even after she provided medical documentation.

The district court rejected her retaliation suit, alleging that her transfer to processor from tagger was a lateral move and thus not an adverse employment action. The circuit court found that this was error, holding that a plaintiff's 'job-related attributes' must be taken into account when determining whether a lateral transfer was an adverse employment action. Since the defendant assigned this work to the plaintiff knowing that she could not do it, it could be considered an adverse employment action, at least sufficient to present the issues for jury resolution.

Similarly, the Second Circuit ruled that reassignment to a job requiring a five-story climb could be retaliatory if the employer knew of the employee's difficulty climbing stairs. Bernheim v. Litt , 79 F.3d 318 (2nd Cir. 1996). In this case, the court noted that the transferred employee had a herniated disc, a bulging disc, a fractured right knee, and a loose body in the left knee.

A lateral transfer may also constitute an adverse employment action if it endangers, or potentially endangers, the employee's life. In Strouss v. Michigan Department of Corrections , 250 F.3d 336 (6th Cir. 2001), the court ruled that a factual issue existed as to whether a lateral transfer of a prison nurse to another part of the prison constituted an adverse employment action in retaliation for her complaints of sexual harassment in view of her allegation that some inmates housed in that facility made threats against her.

In light of recent court rulings, it cannot be assumed that a purely lateral transfer following an employee's protected activity will not rise to the level of an adverse employment action under the civil rights laws. A transfer that alters the terms and conditions of an individual's employment in some negative way may satisfy the second prong of the prima facie test for retaliation claims. Management, therefore, should consult with officials knowledgeable about equal employment opportunity law prior to making these personnel decisions. In addition, managerial EEO training should include a component on retaliation, which discusses the broad scope of 'adverse employment actions.'

Eric Matusewitch, PHR, CAAP, is Deputy Director of the New York City Equal Employment Practices Commission, and author of The Manager's Handbook on Employment Discrimination Law (Andrews Publications, 2000).