Is Denial of a Lateral Transfer an Adverse Employment Action?
Although the current answer is a clear “no,” the future is somewhat less certain in light of a recent decision from the U.S. Court of Appeals for the D.C. Circuit.
In Chambers v. District of Columbia, the employee claimed that denial of her multiple requests for a lateral transfer was sex discrimination and retaliation for her filing of charges with the Equal Employment Opportunity Commission. In order to sustain a discrimination or retaliation claim under federal antidiscrimination laws, a plaintiff must establish that she suffered an adverse employment action. As the D.C. Circuit noted, under its own precedent, a lateral transfer – or denial thereof – with no diminution in pay or benefits does not constitute an adverse employment action for purposes of a discrimination or retaliation claim “unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.”
Although that seems like a definitive answer, and the other three circuits (Fourth, Sixth and Seventh, according to the D.C. Circuit) to address the issue agree, the opinion contains language of concern. The D.C. Circuit panel specifically noted that it did not have the ability to overrule the precedent issued by another 3-member panel of the court. And two of the three judges on the panel expressed their view that the full en banc D.C. Circuit Court should review this case with an eye towards overturning the existing precedent and finding that all discriminatory job transfers, or discriminatory denials of transfers, to be actionable adverse employment actions. Whether the full court will take up the suggestion remains to be seen