Dive Brief:

• An HR clerk who was transferred to the production floor of a chicken processing plant should get a second chance at her race and national origin discrimination claims, an appeals court has determined (Vinson v. Koch Fords of Alabama, LLC, Koch Foods LLC, David Birchfield, No. 17-10075 (11th Cir., May 23, 2018)).
• Koch Foods of Alabama hired Maria Vinson, who is Puerto Rican, to work in the HR department as a new hire orientation clerk and translator. Her duties included processing new hires, conducting drug screens and assisting with payroll, according to court documents. After she and co-workers left the HR department unattended one day, the HR manager suspended the trio. Upon returning to work, the manager told Vinson he wanted her to work with new hires on the production floor. Her new duties included "pulling guts from chicken carcasses, sawing chicken carcasses, hanging dead chickens on shackles [and] cutting and removing damaged meat from chicken carcasses." The other two employees, both white women, did not have their duties changed. Shortly thereafter, Vinson's position was eliminated.
• Vinson sued, alleging race and national origin discrimination. A district court granted summary judgment for the employer, finding that Vinson did not suffer an adverse employment action because she did not mind being on the production floor, that she received a raise shortly before she was fired and that her duties did not change significantly. On appeal, however, the 11th Circuit disagreed. Vinson’s subjective view of the change was not controlling, it said, and her duties certainly significantly changed. Vinson may well be able to show that she engaged in misconduct similar to that of a person outside her protected class, and that the disciplinary measures enforced against her were more severe than those enforced against the others. Further, the court said, she presented sufficient evidence that the reason for the transfer was pretext: the HR manager said he wanted Vinson to interact more with production floor employees and assist in training them but it was never clear what her new job actually entailed. "A reasonable jury could conclude that Birchfield created this position for Vinson specifically because it was unnecessary, and, ultimately, it gave him a reason to fire her," the court said.

Dive Insight:

Employers can’t subject employees to adverse employment actions because of protected characteristics. Whether an action is materially adverse depends on the facts and circumstances of the particular case, according to U.S. Equal Employment Opportunity Commission guidance on retaliation.

The U.S. Supreme Court has held that transferring a worker to a harder, dirtier job within the same pay grade, and suspending her without pay for more than a month, even though the pay was later reimbursed, were both adverse actions, the guidance said. The Court also has said that actionable retaliation includes: the FBI's refusing to investigate death threats against an agent; the filing of false criminal charges against a former employee; changing the work schedule of a parent who has caretaking responsibilities for school-age children; and excluding an employee from a weekly training lunch that contributes to professional advancement.

By contrast, a petty slight or minor annoyance that is not likely to dissuade an employee from engaging in protected activity in the circumstances is not "materially adverse," at least when it comes to retaliation, EEOC's guidance says. Similarly, the 3rd Circuit earlier this year rejected an employee's gender discrimination claim, finding that denying a worker’s request to take a software training course wasn't an adverse employment action (Ford v. County of Hudson, No. 17-1805 (3rd Cir. April 5, 2018)).