Jottings By An Employer's Lawyer

Friday, May 14, 2004

4th Cir. Explores Parameters of "Adverse Employment Action" In Assignment Case

As discrimination claims become more nuanced, one of the more frequent battlegrounds is whether an employer's decision is an "adverse employment action" sufficient to merit Title VII protection. Anyone who has any familiarity with corporations and the politics that are often played in those organizations, know that assignments that may appear similar in some respects may have substantially different impacts on the upward mobility of one's career. That certainly is what the plaintiff, who was heading a large contract with the Washington Metro for his employer thought when he was reassigned to a marketing and business development position and relieved of his managerial duties on the Metro project.

Resigning a month later he sued for racial discrimination. In granting summary judgment the district court found:
There was no demotion. There was a transfer of responsibilities. The man’s salary was not affected. He received his bonus. He still had professional-level work. He was still, if he wanted to be, on track for promotion. There simply is not in this record the adverse action that would satisfy that element.

In affirming the Court noted the obligation to balance the need for protection against discrimination with the need to make sure that a possible lawsuit did not hang over an employer's head on every employment decision. A balance it found the district court properly struck. James v. Booz Allen & Hamilton, Inc. (4th Cir. 5/14/04) [pdf]. A strong argument can be made that federal courts and discrimination litigation are not calibrated finely enough to be an effective tool for resolving such questions. The question does remain -- what is the best way to address legitimate questions concerning discrimination where decisions are of necessity more subjective.

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