Under the Americans With Disabilities Act (and in employment retaliation cases in general), an employee must be subject to an “adverse action” in order to bring a claim for retaliation. The U.S. Court of Appeals for the Fourth Circuit recently considered whether an employee who is granted a request to transfer to a new position is subject to an “adverse action” under the Americans with Disabilities Act (ADA) if that transfer later turned out to be unsatisfactory to the employee.
Laird v. Fairfax County
In Laird v. Fairfax County, Laird had been diagnosed with multiple sclerosis and asked her boss if she could telework. However, the arrangement ultimately did not work for the County, and they decided to limit Laird’s telework. In response, Laird filed an EEOC complaint. In an attempt to resolve the matter, the parties decided that Laird would be transferred to a new position with the same pay grade. Laird found the new position to be boring and worried that it limited her advancement opportunities. Laird claimed that the County demoted her in retaliation for filing an EEOC complaint.
The Fourth Circuit held that there was no adverse action because Laird consented to the transfer. In a concurring opinion, Judge Wynn explore the question of whether there is an adverse action when an employee is pressured into accepting a transfer. When an employee is forced to accept a transfer to an inferior position, it is known as a “constructive demotion,” and although The Fourth Circuit has not officially held that a constructive demotion constitutes an adverse action under the ADA, Judge Wynn’s concurring opinion suggests that it would.
Any transfer that could be considered a demotion could potentially be an adverse action. For this reason, it is important for employers to carefully document transfer requests so that they can prove that transfers are voluntary, rather than “constructive demotions.”