Dive Brief:

• An employee's lateral transfer did not amount to discrimination or retaliation because it did not cause a significant change in her employment status, the 3rd U.S. Circuit Court of Appeals ruled (Anderson v. The Mercer County Sheriff Department, et al., No. 18-1292 (3rd Cir., May 27, 2020)).
• The employee had alleged, among other things, that her transfer took place shortly after she alleged discrimination.
• But approximately 15 others were transferred at this same time, the court said, and the plaintiff did not allege that her responsibilities changed significantly. Additionally, she was never disciplined, nor was her rank or salary reduced, the 3rd Circuit said, upholding the lower court's summary judgment for the employer.

Dive Insight:

To succeed on a discrimination claim, an employee generally needs to show that he or she suffered an adverse employment action. An "adverse employment action" for purposes of Title VII of the Civil Rights Act of 1964 is "an action by an employer that is 'serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment,'" the 3rd Circuit explained. Such an action must constitute "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits," the Anderson court noted.

The facts and circumstances of each case must be examined individually to determine if an employment action is materially adverse. The 11th Circuit, for example, 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. Guidance from the U.S. Equal Employment Opportunity Commission (EEOC) on retaliation notes a U.S. Supreme Court case in which the nation's top court determined that transferring a worker to a "harder, dirtier job within the same pay grade, and suspending her without pay for more than a month, even though the pay was later reimbursed" is a materially adverse action.

On the other hand, courts have concluded that a temporary transfer from an office to a cubicle was not a materially adverse action because such a move was a "trivial punishment or petty slight" not likely to prevent an employee from engaging in protected activity. 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.

Employment experts recommend that HR work to ensure policies and procedures are implemented evenly to prevent discrimination claims. Additionally, HR may need to be involved if an employer needs to dole out discipline against an employee who has recently engaged in a protected activity.