No, Moving an Employee to a Higher Paying Job Is Not Discriminatory

By Eric B. Meyer

Reading yesterday’s post about religious accommodations and Flying Spaghetti Monsters may have had you rolling your eyes like — who is that old guy? Tony Danza?

Just kidding, I know my ’80s TV. It’s Corbin Bernsen.

Keeping with the topics of accommodations and eye rolling, I recently read this opinion (Kelleher v. Wal-Mart Stores, Inc.) about an employee with multiple sclerosis, who alleged that her employer violated the Americans with Disabilities Act by transferring her into a position paying $.40 cents more per hour.

And then, it created a hostile work environment when, among other things, members of management rolled their eyes at her.

A pay raise is not an adverse employment action

At a minimum, a plaintiff who alleges ADA discrimination must establish, among other things, an adverse employment action due to her disability. While a transfer to a new position could be retaliatory, often it’s not.

School ’em St. Louis-based Eighth U.S. Circuit Court of Appeals:

A transfer to a new position may be considered an adverse employment action if the plaintiff cannot perform the responsibilities of the new position due to disability. Here, however, Kelleher has failed to offer evidence that she is unable to perform the job of overnight cashier. Kelleher believes she was forced into a new position that she did not want and that she felt would humiliate her…But there is no evidence that she was actually subject to harassment or comments by customers as a cashier; that there was any particular job responsibility she was medically unable to perform; or that management ever determined she was unable to fulfill her new responsibilities.”

Well, that and the raise she received.

Also, eye rolls do not create a hostile work environment

We skipped over this in my law school Employment Law class.

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Either way, eye rolls and other simple teasing do not a hostile work environment make. Rather, the workplace must be “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the condition of the victim’s employment and create an abusive working environment.”

So, while “random looks and eye rolls” may be “unpleasant to tolerate” — they don’t rise to the level of harassment.

Employer takeaways

The mere perception of mistreatment can have an employee thinking lawsuit even when the underlying legal or factual support isn’t necessarily there.

So, train your managers and others dealing with requests for accommodation to treat those employees respectfully and take all accommodation requests seriously.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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