No discrimination without adverse action

A school counselor who sued because she thought discrimination had cost her a promotion has lost her appeal.

Reason: The job she wanted wasn’t a promotion after all. It would have been a lateral transfer. That meant being turned down wasn’t an adverse employment action. And when there’s no adverse action, there can be no discrimination.

Recent case: Kenya, a black woman, was a school counselor who worked with at-risk children. Her position and her salary were funded by grants that paid out in three-year terms.

She sued when she learned other counselors—none of them black—had been hired or transferred into jobs that weren’t grant-funded. She alleged that because the positions hadn’t been posted, she never had an opportunity to apply. She alleged that was an adverse employment action that discriminated against her on account of her race.

The lower court dismissed her case, reasoning that she had not experienced an adverse employment action because she had not been demoted, fired or denied a promotion. She filed an appeal.

Now an appellate court has refused to reinstate the lawsuit. Kenya had tried to convince the court that because the counseling positions she hadn’t known about were permanent and not grant-funded, they were in effect promotions because they were more secure.

The court didn’t buy her argument. It reasoned that they would have been lateral transfers, and being denied the opportunity for a lateral transfer isn’t an adverse employment action. Therefore, it can’t be the basis for a race discrimination claim.

The appeals court noted that while Kenya might have felt the other positions were more secure than hers, her subjective feeling was not enough to turn a lateral transfer with identical pay and benefits into a promotion. (Boson v. MISD, Court of Appeals of Texas, 2018)