Denial of lateral transfer isn’t an ‘Adverse job action’ — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Denial of lateral transfer isn’t an ‘Adverse job action’

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in Discrimination and Harassment,Human Resources

Employees who think a supervisor is treating them unfairly and suspect discrimination often will look for an escape. One tactic is to ask for a transfer to another department or location.

Don’t think that you’re required to acquiesce.

Refusing to approve a transfer to a lateral position is seldom seen as an “adverse employment action.” That’s because a lateral transfer, by definition, is an equivalent or near-equivalent position. (To prove discrimination, employees must show that they were subjected to an adverse action.)

The employee’s subjective preference to work for another supervisor or in another location doesn’t change the fact that the jobs are objectively the same, and your refusal to allow the transfer can’t be the basis for a discrimination lawsuit.

Recent case: Donna Arensdorf, a white female, worked for the IRS collecting delinquent-taxpayer accounts. She was performing satisfactorily and the IRS allowed her to work from home. The trouble began when Arensdorf’s supervisor began criticizing her work and downgraded her evaluation.

Arensdorf knew that if her performance didn’t improve, she’d have to work from an IRS office. She asked to be transferred to another supervisor because of alleged harassment. The IRS denied her request. She sued, claiming that other IRS agents who were black had been allowed to transfer after they claimed harassment.

The court rejected her claim. Rejection of a lateral transfer request is not an adverse action since pay, type of work and benefits would remain the same. While Arensdorf may have perceived another supervisor as more desirable, the jobs were objectively still the same. (Arensdorf v. Snow, SD Texas 2006)

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