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Employee's Request for Lateral Transfer to Avoid Discrimination Denied


You may not think that denying an employee a request for a lateral transfer could be unlawful discrimination, but it depends on the situation. In a recent case filed in New Jersey, a Hispanic employee alleged he was being subjected to discrimination and harassment by his supervisor because of his race and ethnicity. He requested a lateral transfer to get away from that supervisor but the request was denied. He filed suit.

What is required to prove employment discrimination?

In order to establish an employment discrimination claim, an employee must establish three basic elements: (1) they belong to a protected category under the law (such as race, ethnicity, sex, religion, etc.); (2) they suffered an adverse employment action; and (3) the adverse employment action was the based on that protected characteristic.

What type of harm is required?

After an employee has established those three basic elements, there must also be some type of harm that occurred. However, that harm does not necessarily have to be concrete or economic in nature, nor does it need to directly harm the employee. For instance, if an employee who is a member of a protected class is denied a benefit that is otherwise provided to similar employees who are not part of that protected class, that may be discriminatory. That may be true even if the employer is not obligated to provide that benefit or opportunity. It may also apply even if the protected employee is not harmed in a way that puts them in a worse position than they were in prior to the denial.

Claim for discriminatory denial of lateral transfer

In the case of Samuel Ortiz-Diaz, a government employee, he applied for a transfer from the Washington, D.C. office to either Albany, New York or Hartford, Connecticut. The reason for the request was to no longer work under the supervision of his current boss whom he perceived as both racially and ethnically biased.

In making the request, the employee was willing to take a decrease in pay because he saw it as a way to improve his career opportunities. However, his supervisor denied the transfer request and gave no explanation. The employee sued his employer for denying the lateral transfer request because of his race and ethnicity.

Is the denial of a lateral transfer an adverse employment action?

Historically, the denial of a lateral transfer alone is not considered discrimination because it does not constitute an adverse employment action. However, the D.C. Circuit Court decided that the case should go to the jury to decide whether in this situation the denial of the employee’s request was adverse. The court reasoned that denying the transfer could reasonably be seen as denying the employee the opportunity for career advancement.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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