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Employment claim upheld where transfer was denied

A federal appeals court has held that repeated denials of transfer requests can constitute an adverse employment action supporting a gender discrimination claim.

The employee was a female detective who was highly educated in forensic sciences. During her 14-year tenure with her employer she saw a decline in her department’s volume of work. The employer acknowledged the decline in work, attributing it to prohibitive costs to comply with government standards.

The employer denied the employee’s request to be transferred to a growing department during a period when her department was rumored to be closing, when its equipment was not being upgraded to keep pace with the field, and when its work was increasingly outsourced. These jobs were all given to male employees.

The employer argued that because her then-current assignment required greater scientific training keeping her in her position could not be viewed as “objectively disadvantageous” as a matter of law.

The 2nd U.S. Court of Appeals rejected the employer’s argument and held:

“We hold today that an employee has established the “adverse employment action” necessary to make out a prime 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 deemed “materially more advantageous” to include factors of prestige, modernity, training opportunity, job security, or some other objective indicator of desirability.

The fact that all males were given jobs in the growing department, in which the female employee had requested a transfer to, raises issues of pretext. Certainly, facts regarding qualifications and past performance reviews might also be important indicators of denials or selection for transfer into growth departments.

Job security is certainly materially advantageous for all — regardless of gender!

Lindy Korn practices at The Law Office of Lindy Korn.