A recent court decision allows employees who request a lateral transfer to later change their minds and sue for discrimination based on the very transfer they sought. So an employer's claim that it merely gave the employee what he or she asked for is no defense.
In Deleon v. Kalamazoo Cnty. Rd. Comm'n, the Sixth Circuit held that an employee's lateral transfer—a transfer that the employee requested—could still be an "adverse employment action" supporting a discrimination claim. The court noted that the employee's opinion of the transfer has no impact on whether the transfer is "adverse." Instead, the court focused on the working conditions following the transfer and found that the new work environment, which the plaintiff was aware of when he sought the job, can be objectively intolerable.
In the case, Robert Deleon, a fifty-three-year-old Hispanic male working for the Kalamazoo County Road Commission as an area superintendent, applied for the equipment and facilities superintendent position. The job description stated that the position would involve working in a garage surrounded by loud noises and diesel fumes. Deleon interviewed for the position, but was initially denied the job because his computer skills were subpar. The position went to another candidate, who soon quit, and the employer transferred Deleon to the new position.
Although Deleon asked for the new job, spoke to his supervisors about the job, and was aware of the required conditions, including diesel fumes and soot, the court said that Deleon's transfer was "involuntary" because the transfer occurred several months after his initial application. Deleon worked in the new position for nearly a year before he filed the suit alleging race and age discrimination.
The employer tried to defeat the suit by logically pointing out that the transfer could not be considered "adverse" because Deleon wanted the transfer. Although Deleon's transfer did not involve a reduction in salary, benefits, or title, or an increase in work hours, the court looked to the particular circumstances for other indications that the transfer was still adverse. The court concluded that Deleon's transfer was potentially an adverse employment action that could support a discrimination claim because he was exposed to diesel fumes and had to wipe soot out of his office.
In sum, employees have another potential avenue for asserting discrimination claims. Even if the employee asks for a lateral transfer and is aware of the conditions that come with the transfer, he or she may still sue because of it later. The court emphasized that an employee's request for a transfer was not the issue; rather, the "focus of the inquiry" was "whether the conditions of the transfer would have been objectively intolerable to a reasonable person."
Last week, the Supreme Court declined to hear the employer's appeal, a decision that could leave Sixth Circuit employers with one less defense, and one less basis for summary judgment, given the expanded definition of adverse action espoused in the Deleon opinion. Justice Alito recognized this danger of expanding the adverse action analysis in a dissenting opinion to the certification (appeal) denial, noting: "An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer's regret, they can sue."
The case is Deleon v. Kalamazoo Cnty. Rd. Comm'n, 739 F.3d 914 (6th Cir. 2014), cert. denied, No. 13-1516, 2015 WL 132982 (U.S. Jan. 12, 2015).
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