Employees Can Have Their Transfer And Sue You Too!

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...