Not every action that an employee views as negative can serve as the basis for a claim of discrimination under Title VII of the Civil Rights Act of 1964. In order to state a claim for relief, federal courts have held that the complained-of consequence must reach the level of an adverse employment action. Minor negative measures such as denying an employee’s request to attend a conference or changing an office location have generally not been found to meet this adversity requirement.
On August 2, the district court in D.C. concluded that in certain circumstances denying an employee a lateral transfer is enough to constitute an adverse employment action under Title VII. In Ortiz-Diaz v. U.S. Dept. of HUD, the plaintiff alleged that his supervisor was biased against Hispanic employees. He requested that he be allowed to transfer to the same position at a HUD field office. When this transfer was denied, he alleged that the action was based on his race. The district court dismissed the lawsuit, finding that the transfer denial was not an adverse employment action under Title VII because it did not result in any changes to the material terms and conditions of his employment or negatively affect his future career prospects.
The D.C. Circuit disagreed, reversing the decision and remanding the case for further proceedings. While noting that in most cases a lateral transfer is not an adverse employment action, in this case the plaintiff claimed that the reason for the request involved avoiding a biased supervisor. He provided sufficient evidence to indicate that remaining under this supervisor’s direction would have materially harmed his career prospects going forward.
While this decision draws a distinction between actionable and non-actionable transfer requests, it provides a map to plaintiffs for avoiding dismissal of their claims based on lack of a material adverse action. By focusing on avoiding the discriminatory conduct, employees can claim that otherwise minor employment actions rise to the level necessary to pursue an actionable discrimination claim.