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Denying transfer—Even a lateral one—Can be discrimination

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in Career Management,Employment Law,Human Resources,Workplace Communication

Denying someone a transfer she wants may be an adverse employment action—and may trigger a discrimination or retaliation lawsuit. That’s true even if the transfer wouldn’t have meant more pay or other tangible benefits.

From the employee’s perspective—and now one court’s too—it’s not always about the money and benefits. Intangibles such as career advancement also count.

That’s another reason to make sure every employment decision is fair and not tainted by bias.

Recent case: Natalie Beyer was a police detective with lots of experience in forensics. She worked for 14 years in the Serology Section of the Nassau County Police Department, where she analyzed crime scene evidence such as blood and other body fluids.

Beyer became worried when she noticed that some of the work in her department was being outsourced. At the same time, she noted that the Latent Fingerprint Section was using advanced scientific methods and computer-aided resources. She also saw that work in the fingerprint section wasn’t being outsourced.

Beyer applied for every posted job opening she was qualified for at the Latent Fingerprint Section. The openings were for lateral moves, carrying the same pay and title that she held in the Serology Section. However, Beyer believed that a transfer would be a good career move since she would have opportunities for advanced training in new techniques in the Latent Fingerprint Section.

The police department rejected each transfer request, and Beyer watched male candidates take the jobs. Then, after one final try, the department didn’t even process her request. That’s when Beyer sued, complaining she had been discriminated against based on her sex.

Six months later, she was out of a job after her department was closed. She again asked for a transfer, but was instead placed on desk duty, where she processed arrests, interviewed witnesses and pushed paper.

Beyer’s discrimination suit made it to court, but her case was dismissed.

On appeal, however, the 2nd Circuit Court of Appeals reinstated her lawsuit. It ruled that a reasonable person could conclude that the transfer Beyer sought and was denied would have involved “an objective and significant improvement in the terms, conditions and privileges of her employment,” even if it didn’t come with more money or better tangible benefits. (Beyer v. County of Nassau Police Department, No. 06-4930, 2nd Cir., 2008)

Final note: Take a close look at your transfer process. While it may seem that a job carrying the same pay and offering the same benefits (such as time off, insurance and pension eligibility) doesn’t differ much from a similar job, that may not be the case. Although employees can’t sue for subjective disappointment, they can sue for objective denied opportunities. Employers that block some employees from some opportunities while making them available to others can and will be sued.

This decision by the 2nd Circuit Court of Appeals is a strong warning to make sure all transfers are equitably distributed without regard to race, sex, age or other protected characteristics.

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