Tuesday, January 13, 2015

“Buyer’s regret” as an adverse employment action

Nearly a year ago, in Deleon v. City of Kalamazoo, the 6th Circuit decided that an employee could claim discrimination when he was “involuntarily” transferred into a position for which he had earlier voluntarily applied. 

At the time, I thought it was one of the worst decisions I had ever read.

Yesterday, the Supreme Court decline to review the Deleon case. Typically, these denials are unceremonious affairs, with nary a word other than “denied” pronounced. Justice Alito, however, apparently agreeing with my assessment of the 6th Circuit’s decision, took the rare occasion to draft a dissent to the denial (pdf here). This is what he wrote:
An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.
No termination is perfectly insured against a lawsuit. Some are more high risk than others (and those should be accompanied by an offer a severance package in exchange for a release of claims). Even the easiest decisions, however, carry some amount of risk. On any given day, any judge or jury could agree with the employee and decide against you. You job as an employer is to balance the risk of a lawsuit against the risk of keeping an employee employed and make a reasoned, informed decision about whether to retain, fire, or fire with a severance offer. And, please, don’t have buyer’s regret.

[Hat tip: Phil Miles’s Lawffice Space