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Three Steps Employers May Take to Avoid Liability When Transferring Employees

By: Michael J. Lorden

Employers may desire to transfer an employee to a different position, division, or office because of personality conflicts, performance issues, a reorganization, or myriad other reasons.  While transferring an employee may resolve an immediate problem, it could also lead to a retaliation or disparate treatment claim. Here are at least three things to consider before transferring an employee:

First, employers would be wise to review the impacted employee’s history at the company to determine if the transfer could be viewed as retaliatory or discriminatory. For example, employers should generally closely analyze a transfer of an employee who has recently engaged in a protected activity (e.g., filing an EEOC complaint, requesting FMLA leave, etc.). Moreover, employers should avoid a transfer if it would reconnect an employee with a supervisor or coworker with whom there have been previous issues. Often, reviewing personnel files and speaking with managers prior to any transfer will reveal these issues.

Second, to avoid a discrimination or retaliation claim, employers should ensure that the new position is not “materially adverse,” or does not have a detrimental effect on the terms and conditions of a person’s employment, such as a decrease in compensation or benefits, or likely will severely limit promotion potential. For example, in Hendrix v. Jesse White, State of Illinois Secretary of State,[1] the court held that a transfer to a different facility was not materially adverse when the new position had the same job title, responsibilities, pay, and benefits. Similarly, in Montgomery v. Medstar Montgomery Medical Center,[2] the court found that a transfer was not materially adverse because the new position did not impact the employee’s compensation or potential for a promotion.

Third, prior to the transfer, employers should document the legitimate, non-discriminatory reason(s) necessitating the transfer. 

Following these three steps – and consulting competent counsel -- will help limit discrimination and retaliation claims stemming from employee transfers.

[1] http://hr.cch.com/ELD/HendrixWhite071118.pdf

2 http://hr.cch.com/ELD/MontgomeryMedStar071218.pdf