Determining When Employee Lateral Transfer Requests Are Discriminatory

July 8, 2021

Katz Banks Kumin senior counsel Carolyn Wheeler was quoted in a Law360 article “DC Circ. Urged To Create New Test For Job Transfer Bias” about a case before the U.S. Court of Appeals for the District of Columbia Circuit.

Ms. Wheeler represented the Metropolitan Washington Employment Lawyers Association (MWELA), along with Stephen B. Pershing, in filing an amicus curiae brief asking the full court of appeals to rethink its 1999 ruling in Brown v. Brody, which allows employers to force or deny requests for workers’ lateral transfers provided they don’t result in “tangible harm” to the employees. Pointing out that economic harm isn’t always a requirement for Title VII harassment cases, the amicus brief noted that “People are injured by discriminatory treatment that does not necessarily have an economic dimension.” Furthermore, the brief pointed out that the court has often been flexible in applying Brown, particularly in Ortiz-Diaz v. United States Department of Housing and Urban Development where two judges, including then-Judge Kavanaugh, suggested the Court should reconsider its rule.

“A majority wanted to rehear this,” Ms. Wheeler said. “At the very least, the en banc court will likely narrow the rule in Brown so that there is no longer a presumption that lateral transfers are not actionable when made or denied for discriminatory reasons.”

Read the full article here.

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