Failure to Allow Choice Between Two Non-Adverse Actions Is, Surprise, Not An Adverse Action
by Michael Fox
One of the requirements for a discrimination claim is that the employee suffered an adverse employment action. In Jones v. Reliant Energy - ARKLA the Court had difficulty finding one. The facts were that the Pine Bluff facility where Bridget Jones and a co-worker were employed was shut down. Before this, Jones had applied for and received a job as a Training Champion which required her to travel around the company training other employees. For a period Jones was based in Monticello but continued to live in Pine Bluff and commuted daily. Later, at her request, she was assigned to the Pine Bluff factory (which stayed open while the office was closed) for her base of operations. Jones remained employed at the time of her suit. When the Pine Bluff office closed down a co-worker (who was white, Jones was African American) was assigned to handle b/r claims out of the Little Rock office. Sometime thereafter that position was eliminated when all the positions for such claims were moved to Shreveport. The white employee was given a severance package.
Jones suit claimed that she had been discriminated against because she was not given the choice of a severance package or keeping her position. The Court noted it had held that neither failure to give severance benefits nor requiring an employee to relocate was an adverse employment action sufficient to make out a claim for discrimination. It was not inclined to now hold that "the failure to give an employee the option of choosing between two non-adverse employment actions - in other words, the employer's decision to make the choice itself - cannot transform the outcome into an adverse employment action." Holding otherwise would "lead to the absurd result that Jones suffered an adverse employment action because she was not fired." Fortunately, we are not yet to that day, at least in the 8th Circuit.