Denial Of Light-Duty Assignment Not Necessarily An ‘Adverse Action’

In order to establish a discrimination claim, an individual must show that he or she belongs to a protected class, and that the employer took an “adverse employment action” against them because of their presence in the protected class. In lawsuits alleging retaliation against employees because the employees have participated in a discrimination lawsuit, an employment action is considered to be adverse if it is “harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

A retaliation lawsuit brought by three police officers working for the Wichita, Kansas Police Department illustrates that not every employment action is considered to be an actionable “adverse employment action” under discrimination law. One of the three officers alleged that she was retaliated against when the Department denied her request for a light-duty position with the gang unit that she had sought to accommodate her pregnancy. The Department assigned her to other light-duty positions instead.

A federal court of appeals rejected the officer’s contention that the denial of her assignment request was an adverse action. The Court reasoned that “the denial of a transfer constitutes a materially-adverse action only if the employee presents some evidence beyond her subjective desire for the position. The record contains no evidence that the gang unit was objectively preferable in terms of pay, benefits or workload to the light-duty assignments which the officer received. In fact, the officer eventually received a community policing position in which she had previously expressed interest. The officer ignores this patent deficiency in her case.”

Semsroth v. City of Wichita, 2009 WL 373195 (10th Cir. 2009).

This article appears in the April 2009 issue