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Average evaluations and lateral transfers may not be discriminatory

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in Discrimination and Harassment,Employment Law,Human Resources,Leaders & Managers,Performance Reviews

The Export-Import Bank reassigned several employees in the early 1990s, and Regina Brown wasn't happy about it.

The 50-year-old black senior loan officer filed suit, claiming her transfer to what she considered a less prestigious division was discriminatory. A few weeks later she blamed low marks on her annual performance evaluation on retaliation. Although she received high marks in three of five categories, she got an average rating for case work and a minimally satisfactory rating for communication. She also didn't get a transfer she wanted.

The D.C. Circuit Court of Appeals was thoroughly unconvinced by her suit. It said that without a decrease in salary or change in work hours, changes in assignments don't generally equal an adverse employment action. The pay and benefits were the same in the job Brown had, the job she got and the one she wanted.

Similarly, formal criticism and poor evaluations don't necessarily equal adverse actions. In this case, the bank had a system for appealing evaluations, and a tough evaluation of another employee by Brown's supervisor had been challenged successfully. But Brown didn't seek relief that way.

As for the possibility that her evaluation was retaliation, the signature dates proved that her two supervisors wrote the evaluations two weeks before she was transferred and more than a month before she filed her first complaint. (Brown v. Brody, No. 97-5347, D.C. Cir., 1999)

Advice: Just about anything you do can be construed as an adverse employment action, but this case provides an argument for you that lateral transfers, by themselves, are not adverse actions.

When making a lateral transfer, make sure it does not diminish the terms, conditions or privileges of employment, such as office space or opportunity for advancement. Watch out also for other actions that you might not consider discriminatory, but that the courts have, such as shift changes.

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