Quick hits
- In Herkert against BISGNANONo. 24-1420 (August 14, 2025), the Fourth Circuit held that, depending on the circumstances, a job transfer may be an adverse employment action as defined by the Supreme Court Muldrow Standard.
- While the Fourth Circuit found that an employee's acceptance of a new position does not necessarily mean the move was voluntary, it declined to do so any Loss of supervisory authority would constitute “a criminal 'adverse change' in employment status.”
- Employers may need to be prepared to explain and defend the legitimate reasons for a transfer decision.
background
An employee who served as a senior facility manager for the Social Security Administration (SSA) suffered from multiple physical disabilities, including severe renal impairment, pulmonary impairment, and spondylosis. The employee's request for planned telework to compensate for her medical needs was initially rejected. She challenged the denial and an SSA official ultimately concluded that the requested accommodation was appropriate and effective.
Meanwhile, due to performance issues, the employee was moved to an analyst position at the same grade and salary. The employee perceived the new position, which lacked supervisory responsibilities, as less valuable, less interesting, and offered fewer opportunities for advancement. She was subsequently offered another position as a non-supervisory management analyst at the same salary level and level, but she still viewed this as a demotion. However, she accepted this position as the “least worst” option. She was also able to telework if she wished.
The employee sued the SSA for violation of her rights under the Rehabilitation Act (the federal employee analogue of the Americans with Disabilities Act), alleging, among other things, that she was discriminated against in her transfer from the role of building manager to the role of non-supervisory management analyst. The Federal District Court ruled before the Supreme Court's 2024 decision Muldrowentered summary judgment in favor of the SSA, dismissing the employee's claims on the grounds that the reassignment did not constitute a sufficiently significant change in employment status to be considered an adverse employment action because the employee remained at the same grade and salary. The court also found that the employee had accepted the transfer voluntarily.
The Fourth Circuit Decision
The Fourth Circuit reversed the district court's ruling and remanded the case for further proceedings. The appeal court's decision was based on the Supreme Court's ruling Muldrow v. City of St. Louiswhich clarified that employees do not have to demonstrate a “significant” change in working conditions to constitute an adverse employment action under federal anti-discrimination laws. Instead, it is sufficient to demonstrate an adverse change to a term or condition of employment. Several important points can be drawn from the Fourth Circuit's opinion:
- Job transfers can constitute an adverse employment action. The court emphasized that under the Muldrow By default, the worker's transfer could be considered detrimental even if it does not result in a “significant” change to her employment status. Loss of supervisory powers and responsibilities and perceived degradation were sufficient to potentially meet this standard.
- Acceptance is not necessarily the same as voluntariness. The Fourth Circuit has previously held that there is no adverse action when an employer grants a voluntary transfer request. Here, however, the court found that there were genuine factual disputes as to whether the employee's transfer was voluntary. The employee argued that she was only accepting the new position as a “least worst” alternative. This raised questions about the voluntary nature of her transfer, which had to be determined by a jury.
Lessons for employers
Under MuldrowWhether an employment law claim can be viewed as adverse depends on the facts of the case and depends on the circumstances. The Fourth Circuit's decision underscores that even seemingly lateral changes can be viewed as adverse if they result in adverse changes to an employee's working conditions. Employers may want to be aware of the potential negative impact of reassignments and be able to explain the legitimate business reasons for such actions. This case serves as a reminder that it is important for employers to remain informed of current rulings in order to navigate the ever-evolving parameters of employment law.