An employee who requested and was granted a lateral job transfer, and later sued for discrimination, was not precluded from claiming that the transfer was an "adverse employment action," according to a recent decision by the Sixth Circuit Court of Appeals, Deleon, et al. v. Kalamazoo County Road Comm'n, et al., (6th Cir., January 14, 2014).

Although the ruling appears on the surface to put employers in an untenable  position, consideration of the underlying facts is enlightening.  Important to the court's decision was the fact that even though the plaintiff applied and interviewed for the position, he was initially rejected, and the position was filled with another candidate, who left shortly thereafter.  Nine months later, the plaintiff was transferred into the position, without reapplying.  According to the employer's deposition testimony, the plaintiff did not have the option to stay in his former position at the time of his transfer.  The employer stated that the transfer was part of a larger "reorganization."

The conditions of the new position were somewhat hazardous including working in a garage with constant exposure to diesel fumes.  Plaintiff alleged that he developed bronchitis, a cough and sinus headaches from breathing the black soot every day.  

The employer defended by arguing that in accordance with settled case law, because the plaintiff's job reassignment resulted in no changes in salary, benefits, job title or work hours, it should not constitute an adverse employment action.  In fact, the plaintiff stated that he thought the job to which he was transferred had better career opportunities.  

However, the Supreme Court has indicated that whether a particular reassignment is materially adverse depends upon the circumstances of the particular case and should be judged from the perspective of a reasonable person in the plaintiff's position.  White v. Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 71 (2006).  Accordingly, the court focused on whether the conditions of the transfer would have been objectively intolerable to a reasonable person.  In doing so, the Sixth Circuit reversed the lower court's entry of summary judgment for the employer and remanded for further proceedings.  

Judge Sutton wrote a dissenting opinion explaining that, in his view, when an employee applies for and obtains a job transfer, his employer cannot be said to have subjected him to an adverse employment action.  But the majority opinion cited several other decisions in which courts have held that the fact that the employee requested the transfer does not categorically bar a finding of an adverse employment action.  Thus, it is important to consider the conditions of a transfer, even if lateral, before transferring an employee, or allowing an employee to transfer, to a new position.