Transfer can amount to adverse action–but it better be a long way away

Under some circumstances, making an employee move to a different job location can be viewed as an adverse employment action. For example, if the move substantially lengthens an employee’s commute or causes other inconveniences (such as changing child care arrangements), a court may decide that the transfer was adverse.

However, minor inconveniences don’t cut it.

Recent case: Ruby, who was over age 40, applied for several promotions but was rejected. She was, however, transferred to a different office. She filed a series of internal complaints and then a federal lawsuit in which she alleged age discrimination and retaliation.

The age discrimination claim was tossed early because the employer showed it had promoted someone who was, in fact, almost 10 years older than Ruby.

The court also considered whether transferring Ruby was retaliation. The court said such a move can be actionable as retaliation if it affects the terms, conditions or privileges of employment.

In this case, however, it wasn’t retaliation. The case was dismissed. Reason: Ruby’s new assignment was less than a block away from her previous job. (Bradley v. County of Sacramento, ED CA, 2017)

Final note: For retaliation, the relevant question is whether a reasonable employee would not have complained about alleged discrimination in the first place if she knew the consequence would be the transfer. In this case, the answer was a clear “no.” No reasonable person would fail to report alleged discrimination because they feared a one-block move.

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