Agreed Transfer Is Not Adverse Employment Action

The transfer of an employee cannot be an adverse employment action when the employee voluntarily requests that transfer as part of the settlement of an Equal Employment Opportunity Commission (EEOC) charge of discrimination. When an employee agrees to a transfer under such circumstances, he or she does not have a prima facie case of discrimination or retaliation under the Americans with Disabilities Act (ADA). ABA Litigation Section leaders observe, however, that employees who are transferred as part of a discrimination settlement are not without options to ensure they get the benefit of that deal.

Agreed Transfer as a Reasonable Accommodation

In Laird v. Fairfax County, Virginia, the plaintiff suffered from multiple sclerosis and requested a reasonable accommodation under the ADA from her employer, the Fairfax County Department of Procurement & Material Management. The county approved Laird’s request, and she began unscheduled telework “whenever she wanted to or needed to,” so long as she informed her boss. The parties also agreed to revisit the arrangement at any time, and the plaintiff’s boss eventually found the accommodation untenable. The county then modified the plaintiff’s accommodation and allowed her to telework only on two scheduled days per week. The county also required her to come into the office for scheduled meetings.

Unsatisfied with this new arrangement, the plaintiff filed a complaint with the EEOC alleging “that the County discriminated against her because of her disability by failing to provide the initial, more generous, accommodations.” After several months of negotiations, the parties reached a settlement whereby the county and the plaintiff agreed that she would receive a lateral transfer to the Fairfax County Police Department where she would “maintain her pay grade, position within the salary band, and opportunity for future promotion.”

After a month on the job, the plaintiff complained that her duties were not the ones set forth in her job description. After discussions, the police department created a new position and job description, but the plaintiff refused to accept it. She objected to her new role with the police department, claiming that her opportunity for future promotion had been hurt by the transfer, that her job was “thinkless,” and that she found the work “boring.”

Employee’s Agreement Precludes Right of Action

The plaintiff sued the county in federal court alleging unlawful discrimination and retaliation because she filed a complaint with the EEOC. The county moved for summary judgment arguing that Laird could not present a prima facie case because she had not suffered an adverse employment action. The U.S. District Court for the Eastern District of Virginia granted that motion, and the plaintiff appealed.

The U.S. Court of Appeals for the Fourth Circuit held that “if an employee voluntarily requests a transfer, and the employer agrees to it, there is no actionable adverse action.” The court reasoned that the county went beyond what the ADA required, and that the plaintiff “cannot now claim discrimination and retaliation based on the County’s decision to make the agreed-upon transfer.” Whether the county upheld its end of the bargain or breached the parties’ settlement was irrelevant, the court explained, because the plaintiff only brought claims under the ADA and not for breach of contract.

Approach “Reasonable Accommodation” Settlements with Caution

Litigation Section leaders urge employees to know exactly what they are getting when agreeing to a reasonable accommodation. “This decision is unique to these facts and will probably not discourage employees from proposing or requesting reasonable accommodations for disabilities,” explains Alan Lescht, Washington, D.C., member of the Section’s Employment & Labor Relations Committee. “Employees who negotiate and agree to a reasonable accommodation should seek to limit the employer's ability to modify the reasonable accommodation without first obtaining the employee's consent,” opines Lescht.

For their part, employers should be fair and transparent when proposing a lateral transfer as a reasonable accommodation. “Although the court found that an employee who voluntarily requests a transfer suffers no adverse action, it emphasized that a request for transfer is not voluntary if the employee is subjected to intolerable working conditions,” explains Jerry M. Cutler, New York, NY, cochair of the Section’s Employment & Labor Relations Committee. “Employers should be reasonable when considering an accommodation request. This approach resonates well with the EEOC and the courts, and is what the law requires,” concludes Cutler.