Earlier this month, in the case Forgus v. Shanahan, the U.S. Department of Justice (DOJ) filed a brief opposing the petition for writ of certiorari arguing that the United States Supreme Court (Court) should not take jurisdiction of the case because the Petitioner did not apply for the transfer she claimed she was denied. Alternatively, the DOJ argued that the Court should not reach the broader issue of whether a lateral transfer is actionable. Interestingly, in making the argument, the DOJ takes the position that federal appeals courts and the DOJ itself have incorrectly understood Title VII and limited its reach to only employment actions that cause a “significant adverse change in working conditions.” The DOJ now submits that the law covers any discriminatory “personnel actions” and that the denial of a transfer clearly fits within the definition of that term, in both private sector and federal employment settings. If adopted, this position would significantly increase the scope of adverse actions under Title VII and potentially other discrimination laws.
Jennifer Hutchins is an attorney in the Firm’s Labor and Employment & Business Litigation Practice Groups. If you have any questions or concerns about this issue or any other matter, please contact Jennifer directly at 813-223-1099.