A recent Court of Appeals decision which makes employers vulnerable to discrimination charges when granting job transfer requests has prompted Varnum attorneys Joseph J. Vogan and Conor B. Dugan to file an amicus brief with the U.S. Supreme Court.

The brief requests that the Court review the January 14, 2014, decision of the U.S. Court of Appeals for the Sixth Circuit in the matter of Deleon v. Kalamazoo County Road Commission. The brief seeks to convince the Court that granting an employee-requested job transfer cannot by definition constitute an adverse employment action, and thus give rise to a discrimination claim. It further requests that the Court grant the case and adopt a uniform rule because, currently, Federal Appeals Courts in different parts of the country have ruled differently on the issue.

In the original matter, a road commission employee sued his employer on discrimination charges after he requested and received a job transfer. The employee claimed he suffered an adverse employment action because his new position's conditions were less desirable than those of his former position. The matter was originally decided in the employer's favor in U.S. District Court, but was appealed to the Sixth Circuit, which reversed the decision.

The Sixth Circuit held that, despite the fact that the employee actively sought the transfer, and that he alleged no pre-transfer work conditions that effectively coerced the transfer, he could still maintain a discrimination claim.

"This decision, to put it mildly, turns discrimination law on its head, and threatens employers – especially public sector employers – with a flood of discrimination litigation from disgruntled employees whose requested transfers turn out to be less than they desired," said Vogan, who has represented employers in all areas of unemployment litigation for more than 30 years.

The brief points out that appeals courts have ruled differently on this matter, making the issue even more confusing, particularly for multi-state employers.

"The various Courts of Appeals decisions in the transfer context are all over the map and, as such, require intervention of (the U.S. Supreme Court) to provide a clear, workable standard," the brief states.

The brief was filed on behalf of the International Municipal Lawyers Association, which includes government and municipal entities, but the decision affects all employers. The brief was filed in late July. It is expected that the Court will render a decision on whether to hear the case by mid-October.

Vogan said the decision by the Sixth Circuit clearly called for protest in the form of a brief, not only to reverse an unfair decision, but also to create clear guidelines for employers around the country.

Dugan stated that the Sixth Circuit's decision was particularly troubling for employers, especially public-sector employers, whose employees are unionized, because collective bargaining agreements often require employers to give preference to current employees for transfer requests.

"The Sixth Circuit's rule could place employers in a bind because they could be hit with liability if they deny a transfer or if they grant a transfer," Dugan said.

See full text of the brief here.