Issue: Denial of job transfer can equal an “adverse employment action” under Title VII

For the week of April 28, 2008


In order to sufficiently support a prima facie case of gander discrimination under Title VII, an individual must show - among other things - that she suffered an "adverse employment action." The types of action that courts have deemed to be adverse for purposes of this burden include termination of employment, demotion that includes a decrease in salary, and denial of promotion to a position of increased salary and benefits.

The 2d U.S. Circuit Court of Appeals has determined that a denial of a transfer may be the objective equivalent of a denial of promotion, and therefore constitute an adverse employment action, even if the new position sought would not include an increase in pay or other tangible benefits. Beyer v. County of Nassau Police Dept., 2d Cir., No. 06-4930, April 23, 2008.

In that case, a female employee claimed gender discrimination when her repeated requests for transfer were denied. Natalie Beyer was a police detective with strong scientific background and experience. For 14 years, Beyer worked in the Serology Section of the Nassau County Police Department, analyzing blood and other crime scene evidence. During that time, Beyer observed progressive outsourcing of the Serology Section’s work. However, at the same time, the Latent Fingerprint Section (LFS) of the Department was becoming increasingly active, using advancing scientific techniques and computer-aided resources. None of the LFS work was being outsourced.

In 1999 and 2000, Beyer applied for posted LFS job openings for which she was "indisputably qualified." While the transfers sought would have been lateral and involved the same pay and title that Beyer held in Serology, evidence indicated that moving to LFS would have provided opportunities for advanced training and access to new techniques and technology. In addition, as LFS’ work was not being outsourced, positions there were more likely to remain in the Department over the long term. While Beyer was highly recommended for the positions by her supervisor and her Captain, all open LFS positions were given to male applicants. In May 2002, Beyer again applied for transfer to LFS, but the Department did not process her paperwork.

Beyer filed a complaint in 2002, alleging that the Department discriminated against her on the basis of her gender by denying the lateral transfer requests. Six months later, the Serology Department was closed. Beyer again asked to be transferred to LFS, but instead was assigned to a precinct squad, where her responsibilities included performing arrests, taking statements, interviewing witnesses, and processing paperwork. The position did not include opportunity to use scientific knowledge or experience.

While the district court granted defendants’ motion for summary judgment, the Second Circuit vacated that decision and remanded the case for further proceedings, finding that Beyer had suffered the "adverse employment action" necessary to support a prima facie case of gender discrimination under Title VII. The Court specifically held that 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."

While subjective, personal disappointment is not enough to prove that a denial of transfer is sufficiently adverse to support a claim of discrimination under Title VII, evidence that a sought-after, but denied, transfer puts the employee in an objectively and materially better position may be sufficient. This analysis points out the importance of objective, fact-based job descriptions, which can be reviewed and analyzed by employers for the purposes of determining whether an employee’s sought-after position is objectively more advantageous than another, even when both are paid and categorized equally.