Introduction to
Federal
Employment Discrimination Law
Promotion, Demotion and Transfer
Failure to Promote - A failure
to promote claim involves an employee who is not selected for a promotion because he or
she is a member of a protected group.
Case example:
In Ash v. Tyson Foods,
Inc., 126 S.Ct. 1195 (2006), a Title VII race
discrimination action, the U.S.
Supreme Court held that
use of the term "boy" can be evidence of discriminatory
animus. The Supreme Court also rejected the Eleventh
Circuit's standard for determining when disparity in
qualifications can constitute evidence of pretext -- but
Supreme Court gives no guidance as to what the correct
standard is!
Denial of Tenure - A denial of
tenure claim usually involves a college professor who has been denied tenure because he or
she is a member of a protected group.
Case example:
In Chuang v. University of California Davis. Bd. of
Trustees, 225 F.3d 1115 (9th Cir. 2000), a Title VII
race discrimination action, the court reversed the
district court's grant of summary judgment on the claim
of failure to provide a promised tenure position. The
fact that the University provided tenured positions to
Asian professors after this plaintiff filed his
complaint should not be considered in favor of the
employer. "Curative measures simply do not tend to prove
that a prior violation did not occur."
Demotion - A demotion claim
involves an employee who has job responsibilities and/or benefits taken away because he or
she is a member of a protected group.
Case example:
In Tadlock v. Powell, 291 F.3d 541 (8th Cir.
2002), an ADEA age discrimination action, the court held
that transfer to a non-supervisory position is a
demotion even though employee receives same pay and
benefits.
Failure to Transfer - A failure
to transfer claim involves an employee who wants a transfer to a particular position, but
who is not selected because he or she is a member of a protected group.
Case example:
In Brown v. Kinney Shoe Corp., 237 F.3d 556 (5th
Cir. 2001), a Title VII race discrimination action, the
plaintiff, who is African-American, claimed that Foot
Locker categorized its stores as "ethnic" or
"non-ethnic" depending upon the customer base. It then
placed African-American managers at ethnic stores. The
plaintiff claimed he was denied transfers to non-ethnic
stores where he would stand a better chance of further
promotions. A jury found in favor of the plaintiff and
awarded substantial damages. On appeal, the Court finds
sufficient evidence to support the jury verdict on the
failure to transfer claim.
Note: Some courts question whether a failure to
make a lateral transfer is an adverse employment action. If it does not rise to the level
of an adverse employment action, then the employee cannot sue for the failure to transfer.
See, Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999).
Wrongful Transfer - A wrongful
transfer claim may not be an adverse employment action absent any decrease in
compensation, job title, level of responsibility or opportunity for promotion.
Case example:
In Zhuang v. Datacard Corp., 414 F.3d 849 (8th
Cir. 2005), a Title VII national origin discrimination
action, the court held that the plaintiff's "forced"
transfer from developer to tester was not an adverse
employment action. "Changes in duties or working
conditions that cause no materially significant
disadvantage . . . are insufficient to establish the
adverse conduct required to make a prima facie case."
