Can a lateral transfer be discriminatory? The Supreme Court is about to weigh in.


Last week, the Supreme Court made it more difficult for employers to establish that an employee’s request for a religious accommodation under Title VII of the Civil Rights Act of 1964 creates an undue hardship.

But there’s much more to Title VII than just religious accommodations. And the Supreme Court isn’t done with the statute yet. Last week, it agreed to determine whether Title VII prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage.

That’s a word salad right there. So, I’ll explain what happened before the case got to the Supreme Court.

The petitioner was a police sergeant. Her employer involuntarily transferred her to a different unit of the police department. The petitioner claimed that since her sex motivated the employer’s decision, it violated Title VII concerning her “terms, conditions, or privileges of employment.

But here’s the thing. Her pay and benefits remained the same.

Yes, the petitioner’s schedule, responsibilities, supervisor, workplace environment, and other job requirements changed. But both the district court and the Eighth Circuit Court of Appeals concluded that the forced transfer did not violate Title VII because Title VII outlaws only employers’ “adverse employment action[s]” that impose “materially significant disadvantage[s]” on employees.

Stated differently, “minor changes in duties or working conditions, even unpalatable or unwelcome ones … do not rise to the level of an adverse employment action.”

So the question now is whether all forced job transfers (and, for that matter, denials of job transfers) based on an employee’s race, color, religion, sex, or national origin violate Title VII.

Not that you would base any transfer on an employee’s protected class, but remember that state or local law may already protect individuals in these situations.

But the Supreme Court will resolve the Title VII issue in the next term.

In the meantime, if you’d like to check out some of the briefing, you can do so here.

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