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Beware ‘demotions’ that merely strip duties

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in Discrimination and Harassment,Human Resources

Employees alleging discrimination or retaliation for engaging in protected activity have to show they suffered an adverse employment action. Typically, that means they were fired, demoted or transferred to a less desirable position.

But what if the employer simply removes responsibilities, even as the worker retains his title, pay and benefits? That can still constitute a demotion, as the 5th Circuit Court of Appeals recently made crystal clear.

Recent case: Allen, who is black, was suspended from his detective position in the Waco Police Depart­­ment, along with two white detectives. The three were accused of falsifying time records.

All three were reinstated, but Allen’s job description was rewritten. Now, he could no longer search for evidence without supervision, log evidence, work undercover or be a lead investigator. He did, however, retain his title and all pay and benefits.

Allen sued, alleging he had, in effect, been demoted.

The police department argued he couldn’t sue because his job title, pay and benefits hadn’t changed.

It had merely made some changes to Allen’s job description. The lower court agreed with the department and dismissed the case.

On appeal, the 5th Circuit Court of Appeals said Allen had a case because he alleged more than a mere loss of some job responsibilities. Although a detective on paper, Allen alleged that he could no longer detect—that is, search for evidence—without supervision. He was no longer using his training and education and essentially had become an assistant detective despite his title.

The court said since the two white detectives who committed the same alleged time-keeping violations were similarly “demoted,” their preferential treatment could be seen as race discrimination evidence. (Thompson v. City of Waco, No. 13-50718, 5th Cir., 2014)

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