Sixth Circuit Clarifies Adverse Employment Action Standard

Today, the Sixth Circuit issued a decision that addressed whether certain post-charge employment actions amounted to an adverse employment action. The employee had previously complained about not obtaining certain promotions. His latest complaint added a retaliation claim based upon the following retaliatory acts: (a) one of his work packages was held up for a week by his supervisor; (b) he was moved to a new work unit by another supervisor; (c) he was required to leave a note whenever he left his work station; and (d) a Team Leader told him that any high school kid could perform his job.

The court held, however, that none of these acts rose to the level of being an adverse employment action as defined by Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). They "amount[ed] to nothing more than petty slights and minor annoyances." As to (a) it was the supervisor's job to detect problems in the work packages submitted to him and holding up one of the plaintiff's packages for a few days until it was complete was not unreasonable. The transfer claim failed to be adverse because the employee wanted a transfer (he was not getting along with his supervisor) and the employee failed to show "that being transferred to a new work unit resulted in significantly different responsibilities, a change in benefits, or any other negative effect." The employer imposed the note requirement on other employees and, while the remark was clearly insulting, it was not enough, by itself, to be materially adverse.

I have written previously about adverse employment action decisions post-Burlington. From an employer's point of view, the most troublesome aspect of Burlington was that it adopted a very liberal standard for what is an adverse employment actions in retaliation claims and did not clearly delineate the standard it adopted. That left a void the courts of appeals have had to fill and it has taken some time for that to occur. In the Sixth Circuit, at least, it does not appear that the "post-Burlington" standard is markedly different than the pre-Burlington standard but that is not too surprising since Burlington affirmed the Sixth Circuit's decision holding a transfer to a job that was physically more demanding was an adverse employment action.

So, while today's decision is a welcome affirmation that not every job transfer will be an "adverse employment action," it is still important for employers to carefully evaluate any job transfer (of an employee who has complained about discrimination) to ensure that the transfer does not change the responsibilities, benefits or have any other negative effect. Of course, Burlington does not prohibit transfers even if they are adverse. Employers may take adverse action against an employee even after the employee has complained but, if so, the employer is well advised to have sound reasons for the decision.