|
Are your managers making
transfer decisions that could lead to discrimination charges? Find
out below what types of claims can be filed and how to prevent them.
A decision to transfer an employee can come up for many reasons,
such as to respond to an employee's request for a more flexible
schedule or to deal with performance problems. Although transfers
can help solve problems and relieve pressures, they also can disrupt
the workplace and reduce morale if made improperly.
For example, transfers that appear to limit, segregate, or classify
employees on the basis of their status as members of protected
classes may violate equal employment opportunity laws and cause
resentment. In addition, employer-initiated transfers may be viewed
as retaliation if the transferred employee has recently filed a
complaint or lawsuit against your organization. To prevent the
appearance of unlawful motives, you should follow specific
procedures and base transfer decisions on objective criteria that
are clearly communicated to employees.
Reasons for Transfers
Job transfers generally fall into one of two categories: those
initiated by management and those made in response to an employee's
request. Transfers initiated by the employer may be necessary
because of temporary workload imbalances, the need to rotate
employees to limit exposure to harmful conditions, corporate
restructuring, dislocations caused by job elimination or reductions
in force, and demotions in response to disciplinary or performance
problems.
Employees may initiate a transfer because they want new or broader
experience, they are having problems with coworkers, they want to
use their skills better, or they need accommodation for disabilities
or family care responsibilities. Either way, transfers may be
temporary or long- term, depending on the organization's business
needs and may affect the transferred employee's rate of pay.
Some supervisors use transfers to get rid of poor performers and to
avoid addressing performance issues, a situation that can cause
major problems. Not only does this type of transfer fail to provide
guidance to the affected employee, but it also can result in a
discrimination claim if the employee suffers any loss of pay or
status because of the job change. Instead, the human resources
department should help supervisors deal with performance problems,
rather than pass them on to other departments. It should also make
sure that all performance issues have been documented and reviewed
before a transfer decision is finalized.
Discrimination Claims Arising from Transfers
Any transfer decision can result in a discrimination claim if
implemented improperly or for the wrong reasons. Federal and state
laws (including Title VII of the Civil Rights Act) that prohibit
discrimination in the hiring process also apply to transfer
decisions. These laws typically bar discrimination on the basis of
membership in a protected class in any "terms, conditions, or
privileges of employment." Generally, courts look at whether
employees suffer any loss in pay or benefits and whether employers
follow specific procedures, use job-related criteria, and have
legitimate business reasons for the transfer decisions.
For example, in Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003),
a Justice Department employee failed in his claim that he was denied
a transfer to litigation unit chief because of his race. The
employee could not refute the legitimate, nondiscriminatory reason
given by the Justice Department that another candidate was more
qualified and had more management experience.
Similarly, in Curby v. Solutia, Inc., 351 F.3d 868 (8th Cir. 2003),
the court found that a former division vice president and general
manager could not prove discrimination when she was transferred,
without reduction of pay or benefits, to another position. In its
decision, the court noted the fact that her previous position had
been eliminated, which was a legitimate nondiscriminatory reason for
the transfer.
Transfers to positions with the same pay and benefits still may be
considered adverse employment actions and generate discrimination
claims if they involve a loss of job duties, rank, or authority. For
example, in Brown v. Lester E. Cox Medical Centers, 286 F.3d 1040
(8th Cir. 2002), the Eighth Circuit determined that the employer
violated the Americans with Disabilities Act when it transferred a
surgical nurse, after learning about her multiple sclerosis, to a
temporary position in a supply room. Although the employee did not
experience a loss in pay, the court took into account that her new
job duties were solely clerical and did not involve the use of her
nursing skills, that the transfer was viewed as a status demotion,
and that she was expected to look for a new job.
Retaliation Claims
Employees also may sue for retaliation if they suffer an adverse
employment action for exercising a legal right, like complaining
about discrimination, filing a workers compensation claim, or
requesting leave under the Family and Medical Leave Act. For
example, many federal and state discrimination laws generally
prohibit retaliation against individuals who oppose practices made
unlawful by those statutes. In addition, the Sarbanes-Oxley Act
protects employees of publicly traded companies from retaliation for
complaining about or disclosing certain kinds of fraud by their
employers. So, an employee who has filed an employment
discrimination claim or reported illegal activities can sue for
retaliation if later demoted or transferred to a less desirable
position.
To succeed in a retaliation claim, the employee must be able to
prove the following three elements: (1) that he engaged in a
protected activity (such as filing a discrimination claim or
opposing discrimination); (2) that he suffered an adverse employment
action as a result of the transfer; and (3) that there is a causal
connection between the protected activity and the adverse action. As
a general rule, the employee must show that the transfer resulted in
a significant change in employment status, such as a loss of pay or
benefits or significantly different hours.
So, for example, in Stutler v. Illinois Dept. of Corrections, 263
F.3d 698 (7th Cir. 2001), the Seventh Circuit found that a lateral
transfer without a loss in benefits did not constitute retaliation.
The fact that the employee did not like the new position was
irrelevant since there was no evidence that the transfer decreased
her responsibilities or benefits.
Tips to Prevent Claims
As the decisions above show, the key to preventing legal claims
related to transfers is to make these decisions in accordance with
specific procedures, for legitimate business reasons, and based on
objective job- related criteria. In particular, you should:
1.
Train supervisors and managers to make decisions based on
performance, skills, and experience, and not on group stereotypes.
2.Establish procedures for considering transfers so that human
resources controls the process. For example, have a policy to post
available jobs, gather input from all affected personnel, and make
sure the human resources department and hiring manager (as opposed
to the current supervisor) control the decision. By implementing
these steps, you can help ensure that performance issues are
addressed and that problem employees are not shuffled from
department to department.
3.Limit supervisory access to the personnel files of transfer
candidates to performance appraisals, attendance records, recent
disciplinary actions, and other performance-related information to
help ensure that decisions are based on nondiscriminatory reasons.
4.Make sure any change in pay, benefits, and other terms and
conditions of employment are justified by the new position.
5.Document the rationale behind transfer decisions and explain the
decisions to the affected employees. This step is particularly
important when the transfer results in demotion.
In addition, you should encourage employees to discuss concerns
about transfers with the human resources department and then allow
for an appeal through your complaint resolution procedures. Your
careful attention to detail will help deter litigation by showing
employees that the transfer process is fair and will leave you
better prepared to defend your actions, if challenged. |
Personnel
Policy Service, Inc.
