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If an employee is not included in a reduction in force (“RIF”), this may be an unlawful adverse change in employment under Title VII, according to a Michigan Federal District Court.

In Maxwell v. Postmaster General of the U.S., a long-term postal worker filed gender discrimination and retaliation claims alleging, among other things, that he was excluded from consideration in two RIFs and instead was transferred.  The employer argued a transfer in the face of a layoff cannot be an adverse employment action as required by law and sought to dismiss the claims.  The postal worker argued that had he been included in the RIF, as a disabled veteran, he would have received certain rights involving automatic advancement to a new grade or the ability to bid for a new, higher-level position.  Since he lost these advancement rights, he claimed his exclusion from the RIF amounted to the denial of a promotion.

The Court agreed that if the transfer was done in place of a promotion, it would constitute adverse employment action and denied the employer’s motion to dismiss in part.  The Court relied on a Sixth Circuit case that held an adverse change in employment status might be “indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary . . . or other indices that might be unique to a particular situation.”  In that case, an employer’s delay in training an employee prevented the employee from receiving a pay increase; this was enough to prove an adverse change in employment status.  The Court found the case at hand was very similar to the facts of the Sixth Circuit case.

This case is a good reminder that adverse employment actions are more than just terminations.   Because of this, RIF decisions should be analyzed under Title VII with respect to both decisions to include and exclude employees.  These decisions should be documented in case the decision is later challenged.  Employers faced with RIF decisions should contact competent counsel.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.