Be Careful What You Wish For, or Be Careful What You Give?   Adverse Employment Actions Can Lurk in Be Careful What You Wish For, or Be Careful What You Give?   Adverse Employment Actions Can Lurk in

Be Careful What You Wish For, or Be Careful What You Give? Adverse Employment Actions Can Lurk in Surprising Places

"We would often be sorry if our wishes were gratified."[i]  The wisdom of Aesop’s adage plays out in life, but what about work?  Can your employee ask for something and then claim discrimination when he or she receives it?  Can we say “Of course not!” and go about our day?  Not so fast, I’m afraid.
In the recent Deleon v. Kalamazoo County Road Commission case, the plaintiff claimed that his employer discriminated against him by transferring him to a position that was beyond his skill level and in which he was exposed to harmful pollutants.  In defense of the claim, the employer argued that the plaintiff had voluntarily applied and interviewed for the position with full knowledge of the job, and that placing him in the job therefore could not have been an adverse employment action – that is, some type of mistreatment supporting a discrimination claim under the federal discrimination laws. 
The employer succeeded in convincing the district court to dismiss the plaintiff’s discrimination claim by invoking the common-sense concept that employees who seek a job transfer should not be permitted to later complain that their employer placed them in the position for discriminatory purposes.  However, the Court of Appeals for the Sixth Circuit decided the subsequent appeal in the plaintiff’s favor.  Come again?  That’s right.  The Court sided with the employee.  The case recently made headlines when the United States Supreme Court declined to take up the employer’s appeal, thereby leaving the Court of Appeals’ opinion in place.
As it turned out, however, this was not your average case of “be careful what you wish for.”  Rather, as is often said, the devil is in the details.  While the plaintiff had, in fact, applied and interviewed for the position, in actuality, his employer never offered him the job.  After the successful applicant abruptly left the company not long after starting, the company proceeded to offer the position to an external candidate who declined the offer.  Then, without so much as asking the plaintiff if he still wanted the job, the employer transferred him to the position.
The plaintiff admitted that he was aware that the job – Equipment and Facilities Superintendent – was based in a garage where vehicles and other equipment that emitted diesel fumes were operated, but he claimed that had he been offered the position, he would have demanded a significant raise due to the working conditions.  As it was, he was involuntarily transferred with no increase in his rate of pay, and when he later asked for a raise, citing the hazardous conditions, his employer refused. 
One reason why the employer had not offered the plaintiff the position following his interview was that he lacked sufficient computer skills.  Not surprisingly, the plaintiff’s first performance review in the new position cited his technological deficiencies.  When the plaintiff questioned his assignment during the review conference, his supervisor stated that he would not consider releasing him to return to his former position.  As such, in addition to causing him to be exposed to harmful diesel fumes, the plaintiff argued that by involuntarily transferring him from a position where he had been performing well, his employer had set him up to fail. 
Unlike the district court, the Court of Appeals refused to view the plaintiff’s expression of interest in the position as an automatic bar to the claim.  Indeed, the Court of Appeals indicated that the fact that the employee initially requested  the transfer is irrelevant; rather, the critical inquiry is whether the conditions of the transfer are objectively intolerable.  In this vein, the Court found particularly meaningful the fact that the plaintiff had intended to ask for a significant raise if offered the job.  The fact that the employer had effectively deprived the plaintiff of an opportunity to negotiate for a raise, coupled with the undisputedly poor air quality in the garage and the fact that the employer had moved the plaintiff into the position despite his deficient computer skills and then marked him down for that deficiency, amounted, in the Court’s view, to sufficient evidence to support the plaintiff’s argument that he had suffered an adverse employment action.  The Court concluded that the plaintiff had offered enough evidence that he had suffered an adverse employment action to permit him to take his case against his employer to trial. 
What lesson must employers take from this opinion?  Employers risk potential discrimination claims every time they move an employee, voluntarily or involuntarily, into a job involving unpleasant working conditions.  Indeed, it is not that much of a stretch to extend the Court’s analysis to apply to newly hired employees who argue that they were hired to perform a difficult or dirty job because of gender, race, etc.  And that’s not all.  As the dissenting Court of Appeals judge pointed out, under the Court’s analysis, the employer who grants a requested transfer is subject to the same potential liability as the employer who denies a request.  Given these potential claims, employers seeking to avoid liability would be well-served to not just assume that no adverse employment action has occurred, but to instead conduct a more in-depth analysis of the facts of the particular employment situation before taking action. 
Germaine Winnick Willett is a member of Ice Miller's Labor, Employment and Immigration Group. She and Ice Miller's other labor and employment attorneys assist employers faced with employment discrimination, retaliation, wage and hour, contract and other employment-related litigation.  For additional information, contact Germaine at (317) 236-5993 or or any member of Ice Miller's Labor, Employment, and Immigration Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

[i] John Bartlett, Bartlett’s Familiar Quotations (Justin Kaplan ed., Little, Brown, 16th ed. 1992).   

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