Employees turned down for jobs that amount to lateral transfers can’t sue for discrimination. That’s because employees have to prove the employer made an adverse employment decision based on some form of discrimination.
A transfer that doesn’t change the terms and conditions of employment isn’t adverse and therefore can’t be grounds for a lawsuit.
Recent case: Diana Thompson was passed over for what she called a promotion, but her employer called a lateral transfer. She sued for discrimination.
At trial, her employer persuaded the jury that the job was a transfer that included no pay increase or other additional benefits and wasn’t adverse.
She appealed, but the 5th Circuit Court of Appeals said she couldn’t sue because she wasn’t harmed. (Thompson v. Kent, No. 09-30764, 5th Cir., 2010)