Eighth Circuit: Transfer to a Different Location or Department is Not an Adverse Employment Action
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February 28, 2023
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In Bell v. Baptist Health, the Eighth Circuit Court of Appeals stated that a transfer of job location or a transfer to a different department did not produce a material employment disadvantage, and therefore was not considered an “adverse employment action” for purposes of a doctor’s claim for gender-based discrimination.
Here, a female doctor alleged that a colleague male doctor screamed at her, made derogatory statements to her, ignored her statements to him, threw a used syringe at her, and threatened to report her. The female doctor reported some of these instances to the hospital administration, and shortly thereafter, filed a complaint with the EEOC alleging discrimination by the male doctor. In response, the hospital created a safety plan, under which the female doctor was to report if she felt unsafe working with the male doctor (or others) and the hospital would have someone step in to cover for her. The female doctor invoked this safety plan following an interaction with a second male doctor when she reported that she thought the male doctor was intoxicated during a procedure. The male doctor was required to take a breathalyzer test to disprove the allegations, and following the passing test the male doctor remarked that he would never work with the female doctor again. That same day, the female doctor was placed on administrative leave.
Several months later, the female doctor was offered the option to return to work and transfer to a different hospital location or to remain at the location where she previously had worked with the male doctors. The female doctor was also offered the option to transfer to a different department, which would again alleviate the need to work with the male doctors. Regardless of her choice, her duties, hours, and pay would have remained the same. However, the female doctor refused all options stating she did not want to work with the male doctors. She indicated that she should not have to change departments or work locations to avoid working with the male doctors and sued the hospital for sex discrimination and retaliation.
Ultimately, the Eighth Circuit found that the female doctor did not suffer an adverse employment action. The court reasoned that the focus of what constitutes an adverse employment action is on the “material adversity,” stating that a materially adverse action is “one that might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This may include “termination, cuts in pay or benefits, and changes that affect an employee’s future career opportunities,” but “minor changes are not enough.” The transfers offered here would not produce a material employment disadvantage, nor would they have dissuaded a reasonable worker from making or supporting a claim of discrimination. Accordingly, the female doctor’s claims for sex discrimination and retaliation failed.
- Consult with legal counsel when initiating an offer to transfer an employee to a different department or different working location following a workplace complaint.
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