Transfer denial may violate Title VII

Not every employment decision is worth suing over. In the employment discrimination context, courts determine whether the plaintiff suffered an "adverse employment action" for which she can receive compensation. Sometimes, this is an easy call: termination from employment or a demotion counts as an adverse employment action. Lateral transfers may or may not be adverse employment actions. Today the Second Circuit clarifies this issue where the plaintiff is denied a posted job opening to a desirable position.

The case is Beyer v. County of Nassau, decided on April 23. Beyer was a police detective working in the Serology Section, analyzing blood and other fluids from crime scenes. She applied for several available positions with her employer, the Nassau County Police Department, but those jobs went to men. In 2004, the Court of Appeals outlined the legal standard for a case like this: "A denial of a transfer may also constitute an adverse employment action, but we require a plaintiff to proffer objective indicia of material disadvantage; 'subjective, personal disappointment[]' is not enough." So, does Beyer have a case?

The Second Circuit (Calabresi, Walker and Raggi) says yes, reversing the district court's order dismissing the case. Here's the rule that the Court outlines today: "an employee has established the 'adverse employment action' necessary to make out a prima facie case when she has proffered evidence from which a reasonable trier of fact could conclude that the transfer sought and denied would have involved an objective and significant improvement in the terms, conditions, or privileges of her employment."

The Court says that a jury could find that Beyer's transfer denials significantly disadvantaged Beyer and that therefore she suffered an adverse employment action under Title VII: "We conclude that a reasonable jury could find that the [Latent Fingerprint Section] position Beyer sought was objectively and materially better than the position she occupied and that, accordingly, an adverse employment action had occurred." This is because Beyer's present position is a far less desirable place to work in light of the Department's having outsourced much of its work, the fact that her section was not modernizing its operations and credible rumors that her section was going to be closed out. The Court reasons:

These are all objective indications that, by the time Beyer applied to transfer to the LFS, the Serology Section had become a disadvantageous place in which to work. Other evidence, meanwhile, suggests that, for an officer pursuing a career in police forensics, being placed in the LFS was both highly desirable and objectively preferable to working in the Serology Section: (1) at least seventeen people applied for the November 2000 posting, and the supervisor of the unit viewed the jobs as a way of “tak[ing] care of the guys” who had done “the right thing”; (2) assignment
to the LFS entailed using up-to-date equipment and learning new skills; and (3) none of the Department’s latent fingerprint work was being outsourced.

The Court notes that while employers have leeway in how they manage their employees, employers cannot discriminate based on gender. As Judge Calabresi puts it: "Title VII gives employees the statutory right to compete on an equal basis without regard to gender for anything worth competing over."