- The U.S. Department of Homeland Security (DHS) did not violate Title VII of the Civil Rights Act of 1964 when it denied a worker's request to telework to take care of her mother, the U.S. District Court for the District of Columbia ruled (Esters v. Kirstjen M. Nielsen, Secretary of the U.S. Department of Homeland Security, No. 1:18-cv-0254, (D.D.C., Feb. 24, 2021)).
- A management and program analyst sued DHS claiming discrimination and retaliation after she and her supervisor engaged in a series of disputes, which included her rejected telework request. DHS' formal telework policy did not permit dependent care, but the worker argued it had an informal policy, referencing two other employees who were allowed to telework while caring for dependents. DHS permitted one worker to telework while on maternity leave and another to care for his wife while she recovered from surgery.
- The denial of a telework request does not constitute an adverse employment action under Title VII, the court said. Further, the analyst failed to show that the denial was discriminatory. Though she referenced the other employees who were allowed to work remotely and care for dependents, she failed to show that she was similarly situated to these workers, the court said.
An adverse employment action is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits," the court in this instance noted.
Courts have found other incidences of employer actions that weren't adverse actions. In 2019, the 5th U.S. Circuit Court of Appeals found that a teacher being put on an improvement plan wasn't an adverse action under Title VII. Similarly, the 3rd Circuit rejected an employee's gender discrimination claim, finding that the denial of the worker's request to take a software training course wasn't an adverse employment action.
But courts do recognize adverse actions when they qualify. The U.S. Supreme Court has ruled that transferring a worker to a dirtier, more difficult job within the same pay grade and suspending the worker without pay for more than a month were both adverse actions, according to guidance from the U.S. Equal Employment Opportunity Guidance. And, the 11th Circuit has held that the transfer of an HR professional to a job on the floor of a chicken processing plant was a significant change in duties and allowed the case to move forward.