Requiring Employee to Seek Another Job is an Adverse Employment Action

A recent case recognizes that an employer’s decision to remove an employee from her job and give her an opportunity to search for another position within the company is an adverse employment action.  In other words, if it is done for a discriminatory reason, doing so can violate the New Jersey Law Against Discrimination (“LAD”).

Kathleen Fowler, who has epilepsy and is a cancer survivor, worked for AT&T for 30 years and is over 60 years old.  In December 2015, AT&T announced a plan to reduce the Technology Planning and Engineering business unit for which Ms. Fowler worked by eliminating numerous positions.  AT&T placed the employees impacted by this reduction in force on “surplus status,” meaning they were given the choice to accept a severance package and leave the company, or remain employed for 60 days to search for another job within AT&T.  If an employee on surplus status was not offered another position within those 60 days, then she would receive the severance benefits.

Employee's discrimination claim derailed despite suffering adverse employment actionMs. Fowler elected to go onto surplus status.  During that period, she was offered two positions, one in New Jersey and the other in Texas.  Even though she was better qualified for the position in Texas, Ms. Fowler accepted the job as a senior system engineer because it was in New Jersey and she did not want to interrupt her cancer treatment.

Although Ms. Fowler believed she was qualified for the senior system engineer job, she quickly acknowledged that she was not a good match for the role.  Accordingly, she requested permission to look for other positions within AT&T, which her supervisor granted in May 2016.

In October 2016, AT&T placed Ms. Fowler on surplus status again, but this time she did not find another position within the 60 day period.  As a result, AT&T fired her on December 27, 2016.

Ms. Fowler sued AT&T for age and disability discrimination in violation of the LAD, the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”).  However, the trial court dismissed her case.  Ms. Fowler appealed.

On appeal, the Third Circuit Court of Appeals concluded that AT&T’s decisions to place Ms. Fowler on surplus status were adverse employment actions.  Specifically, it found that by making Ms. Fowler’s employment conditional, AT&T took an adverse employment action against her.  It noted that if it was necessary for the employee to lose her job as a result of such a decision for it to be actionable, then supervisors could engage in “not-in-my-backyard” discrimination by transferring minority employees to other division of the company without violating the law.  It explained that the fact that Ms. Fowler found another job at AT&T merely lessened the harm of the adverse employment action on her.

Nonetheless, in Fowler v. AT&T, Inc., the Third Circuit still affirmed the trial court’s decision dismissing Ms. Fowler’s case.  In particular, it found there was no evidence that AT&T’s decision to place Ms. Fowler on surplus status in January 2015 was discriminatory.  Further, despite evidence suggesting AT&T’s decision to place Ms. Fowler on surplus status in October 2016 could have been discriminatory, it found Ms. Fowler admitted she was not qualified for the senior system engineer position, and had not offered a sufficient explanation to allow a jury to conclude that she was qualified for that job.  Accordingly, it affirmed the trial court’s decision to dismiss her case.

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