Kyle Keeton v. Flying J, Inc.

GILMAN, Circuit Judge,

dissenting.

Just last year, in White v. Burlington Northern & Santa Fe Railway Co., 364 F.3d 789, 791 (6th Cir.2004) (en banc), this court granted a rehearing en banc to clarify the proper inquiry for determining whether the victim of alleged discriminatory conduct has suffered an adverse employment action. The comprehensive opinion traced the history of the adverse-employment-action requirement, rejected a definition proposed by the EEOC and adopted by the Ninth Circuit, and instead reaffirmed a definition that this court had previously utilized. Id. at 795-800 . Under that definition, a plaintiff seeking relief under Title VII must demonstrate “a materially adverse change in the terms of her employment.” Id. at 797 (citations omitted).

I believe that the majority has now muddied the waters that White had clarified, swayed by Keeton’s sympathetic family situation and isolated dicta from cases whose actual holdings contradict the conclusion that the majority reaches. Having injected Keeton’s particular personal circumstances into the adverse-employment-action analysis, the majority takes up an argument that Keeton himself had abandoned and proceeds to hold what no court in or outside of this circuit ever has: that a purely lateral transfer that carries with it no change in salary, benefits, responsibilities, or prestige is an adverse employment action when undertaken as a solution to a supervisor’s discriminatory conduct. Because I believe that White and the caselaw leading up to it call for a result contrary to the one reached by the majority today, I would reverse the decision below and remand the case to the district court with instructions to grant judgment as a matter of law in favor of Flying J. I therefore respectfully dissent.

I. TERMINATION AND IMMEDIATE REINSTATEMENT

I agree with the majority that an employee who is illegally discharged, but who secures immediate reinstatement without the loss of any benefits, has not suffered an “adverse employment action” for purposes of the federal anti-discrimination laws. Maj. Op. at 263. Starting with the decision in Kauffman v. Allied Signal, Inc., 970 F.2d 178, 187 (6th Cir.1992), this court has recognized a de minimis exception to the general rule that an adverse employment action following discriminatory conduct gives rise to employer liability under Title VII. The plaintiff in Kauffman was a female machine operator who took medical leave to undergo breast enhancement surgery, and who was harassed by her male supervisor upon returning to work. When she told her supervisor that she had had “enough” of his overtures, he briefly assigned her to a manual machine that was difficult to operate and that was called “torture” by other employees. This court rejected the company’s argument that an adverse employment action must be economic in nature, but remanded the case to the district court because the one-day transfer might fall into “a de minimis *267 exception for temporary actions, such as ... where further remedial action is moot and no economic loss occurred.” Id. at 187 .

Our decision in Bowman v. Shawnee State University, 220 F.3d 456, 462 (6th Cir.2000), on which the majority properly relies, is an on-point application of the principle first articulated in Kauffmann. The plaintiff in Bowman was the Coordinator of Sports Studies at a university, and he claimed that a female dean had stripped him of his duties as Coordinator after he resisted her sexual advances. Ten days after the dean’s actions, however, the school provost rescinded the dean’s decision and removed the termination letter from Bowman’s personnel file. This court held that the ten-day removal from the Coordinator position, with no loss in salary or benefits, was “properly characterized as a de minimis employment action that does not rise to the level of a materially adverse employment decision.” Id. Although the loss of Coordinator responsibilities might be “materially adverse if permanent,” the court said that the “very temporary” nature of the action placed it within the de minimis exception carved out by Kauffman. 220 F.3d at 462 .

The majority, therefore, correctly concludes that Boiuman disposes of Keeton’s argument that a temporary termination, even if followed by immediate reinstatement, comprises an adverse employment action. Our unanimous conclusion on this point should, in my opinion,, end our review of the present case because the “termination theory” of liability is the only one that Keeton advanced in his appellate brief. See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 311 (6th Cir.2005) (stating the general rule that “failure to raise an argument in [an] appellate brief constitutes a waiver of the argument on appeal”) (citation omitted).

But instead of deciding the present case on “the best and narrowest ground available,” Air Courier Conference v. American Postal Workers Union, 498 U.S. 517, 531 , 111 S.Ct. 913 , 112 L.Ed.2d 1125 (1991) (Stevens, J., concurring in the judgment), the majority reaches out and affirms the jury verdict on the basis of a theory that even Keeton does not defend. This theory of liability — that a purely lateral transfer can constitute an adverse employment action when undertaken as a solution to a supervisor’s unlawful conduct — departs from existing caselaw and the policies underlying Title VII.

II. LATERAL TRANSFER

I begin with this court’s recent en banc decision in White , where the court reaffirmed that, “[i]n this circuit, Kocsis [ 97 F.3d 876 (6th Cir.1996)] is the seminal case for defining [an] adverse employment action.” White, 364 F.3d at 797 . The Supreme Court relied in part on Kocsis in describing an adverse (or tangible) employment action as “a significant change in employment status, such as hiring, firing, failing, to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 798 (citing Burlington Indus. v. Ellerth, 524 U.S. 742, 761 , 118 S.Ct. 2257 , 141 L.Ed.2d 633 (1998) (emphasis added)).

Kocsis provides guidance beyond the Supreme Court’s brief description in Burlington Industries. The Kocsis court looked to cases from the Seventh Circuit and joined that circuit in concluding that victims of prohibited discrimination must prove that they have “suffered a materially adverse change in the terms or conditions of [their] employment because of [their] employer’s conduct.” Koscis, 97 F.3d at 885 (citing Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 885 (7th *268 Cir.1989)) (emphasis in original). Although outright termination is a “materially adverse change,” reassignments without salary or schedule changes do not constitute adverse employment actions unless they carry with them “a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indi-ces that might be unique to a particular situation.” Koscis, 97 F.3d at 886 (citing Crady v. Liberty Nat’l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir.1993)). These business decisions “may” be adverse employment actions, White, 364 F.3d at 797 , but only if they are “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Kocsis, 97 F.3d at 886 (citing Crady, 993 F.2d at 136 ).

The Kocsis court borrowed extensively from the Seventh Circuit’s decision in Spring . There, a school principal was transferred to a new position farther away from her home. She sued the school board under the Age Discrimination in Employment Act (ADEA), alleging that she had been transferred on account of her age. Spring, 865 F.2d at 885-86 . Observing that “the only negative aspect of Spring’s new job assignment was that she would have to travel farther from home to get to work,” id. at 886 , the Seventh Circuit held that Spring had not suffered an adverse employment action. Increased commute time alone did not suffice to show a “materially adverse change in the terms and conditions of [Spring’s] employment.” Id.

Another ADEA case in the educational area makes the same point. In Sanchez v. Denver Public Schools, 164 F.3d 527 (10th Cir.1998), a longtime school teacher was transferred to a different elementary school when enrollment at her current school declined. The location of the new school increased Sanchez’s commute time from between five and seven minutes to between thirty and forty minutes. Id. at 532 . Sanchez sued the school district under Title YII and the ADEA, alleging that she had been transferred because of her age and her gender. In affirming the grant of summary judgment in favor of the school district, the Tenth Circuit emphasized that Sanchez’s “salary and benefits remained the same,” that she retained the same job and responsibilities, and that neither the increased commute time nor other “special circumstances” demonstrated that “this employment action was anything beyond a mere inconvenience or alteration of responsibilities.” Id.

Similarly, the 120-mile transfer in the present case did not alter the terms or conditions of Keeton’s employment at Flying J. He retained his status and responsibilities as an assistant manager and continued to enjoy the same salary and benefits that he had received prior to the transfer. The new job was, as the magistrate judge described it, “virtually identical to his [previous] position in Walton, Kentucky.” Because the transfer left Keeton’s “employment status” unaltered, Burlington Industries, 542 U.S. at 761, 124 S.Ct. 2739 , he simply did not suffer an adverse employment action.

What must drive the majority’s contrary conclusion, then, is one of two theories, both of which are unsupported by existing law. One theory rests on the fact that the distance of Keeton’s transfer was greater than that of the transfers in cases like Spring and Sanchez , cases the majority does not even cite. The second theory stems from the majority’s apparent belief that Flying J’s solution to the discriminatory conduct of Keeton’s supervisor, combined with Keeton’s own personal circumstances, convert an otherwise permissible employment decision into an adverse one. *269 These two theories will be addressed in turn.

A. A longer commute does not constitute a material change in the terms or conditions of employment

First, the principle that the majority appears to adopt — that employment decisions increasing commute time can, in and of themselves, be materially adverse if undertaken as a solution to a supervisor’s discriminatory conduct — has little basis in our caselaw. As the majority acknowledges, none of our cases has ever found that increased commute time, standing alone, transforms an otherwise lawful lateral transfer into an adverse employment action.

This court, for example, affirmed a district court opinion holding that an increase of 20 minutes in commute time amounted to neither a constructive discharge nor an adverse employment action. Darnell v. Campbell County Fiscal Court, 731 F.Supp. 1309, 1313 (E.D.Ky.1990), aff'd, 924 F.2d 1057 (6th Cir.1991) (unpublished). More recently, in Policastro v. Northwest Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002), this court rejected a plaintiffs claim that she suffered an adverse employment action when her employer required her to travel to cities 80 and 100 miles from her home four days per week, instead of four days per month. The Policastro court refused to rely on the plaintiffs “subjective displeasure” over the airline’s business decisions, instead concluding that the increased travel time each month did not render the terms or conditions of her employment “objectively intolerable.” Id.

Two unpublished cases from this circuit add to the steady stream of authorities holding that increased travel time is insufficient to render a transfer an adverse employment action. One is Nelson v. General Electric Company, 2 Fed.Appx. 425, 432-33 (6th Cir.2001) (unpublished), where the company was reducing its staff at one facility and offered the plaintiff a position at another. The new position would have required her to commute 60 miles to work each day. This court held “that a longer commute with the same job title, salary, and benefits is not an adverse employment action.” Id. at 433 . In the other case, an interviewer at a public defender’s office in Ohio was transferred from the adult division to the juvenile division, requiring her to spend additional time driving between county buildings. Smith v. County of Hamilton, 34 Fed.Appx. 450, 455-56 (6th Cir.2002) (unpublished). This court again relied on Darnell and held that the increased travel time did “not amount to a materially adverse change.” Id. at 456.

Beyond lacking support in the caselaw, the majority’s disposition suffers from subjective line-drawing problems. This disposition is inconsistent with prior cases that examine the effect of an employment decision on a “reasonable person.” See Policastro, 297 F.3d at 539 . If a 20-minute increase in daily commute time, an extra 100 miles of driving on 12 additional days per month, and a 60-mile increase in a daily commute are not “objectively intolerable” changes in the terms and conditions of employment, what makes the 120-mile transfer in the present case an adverse employment action? See Darnell, 731 F.Supp. at 1313 ; Policastro, 297 F.3d at 538 . And if the transfer had been to a location, say, 40 miles away, would the change in Keeton’s employment status still be “materially adverse”? Kocsis, 97 F.3d at 885 ; see Sanchez, 164 F.3d at 532 (finding no adverse employment action despite a potential 35-minute increase in commuting time); Spring, 865 F.2d at 885 (finding no adverse employment action where increased travel time to work was the only negative consequence of an employee’s *270 transfer); Nelson, 2 Fed.Appx. at 433 (holding that a 60-mile increase in commuting distance did not constitute an adverse employment action where the employee retained the same job title, salary, and benefits). When, in other words, would a reasonable person “need[ ] to consider relocation”? Maj. Op. at 265. The majority has not articulated answers to these questions.

In the face of the consistent and compelling authorities cited above, the majority relies on a single sentence in Policastro stating that courts can consider increased commuting distance as “a factor in determining whether a constructive discharge has occurred.” Maj. Op. at 264 (citing Policastro, 297 F.3d at 539 ) (emphasis added). But the jury ruled against Keeton on his constructive discharge claim, so the only issue before us is whether Keeton suffered an adverse employment action. I therefore find the statement from Policas-tro on which the majority relies unpersuasive for two reasons. First, the majority has cited no authority for the proposition that something that is only one factor in the constructive-discharge inquiry can, in and of itself, constitute an adverse employment action. Second, even if that proposition had legal support, the jury whose verdict the majority affirms in the present case found that the transfer did not rise to the level of a constructive discharge. As a consequence, neither the holding in Poli-castro nor the principle that the majority extracts from that case supports the majority’s conversion of one factor in the constructive-discharge analysis into the sole basis for finding an adverse employment action.

This is not to say that lateral geographic transfers can never amount to a constructive discharge and therefore satisfy the adverse-employment-action requirement. Assume, for example, a hypothetical case where the employer repeatedly ships its employee to different locations, ordering another transfer each time the employee settles in at the new location. A jury under such circumstances might reasonably conclude that the continuous transfers created an “objectively intolerable” working situation. But this hypothetical neither bolsters the majority’s analysis nor helps Keeton, because his constructive-discharge theory was specifically rejected by the jury.

The majority next resorts to the general statement, made in yet another ease finding no adverse employment action, that this transfer falls into the category of “other indices that might be unique to a particular situation.” Maj. Op. at 265 (citing Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir.1999)). But these “other indices,” which this court also mentioned in White, 364 F.3d at 799 , refer not to the plaintiffs personal or family situation, but instead to the “terms and conditions of employment.” Kocsis, 97 F.3d at 886 (quoting Spring, 865 F.2d at 886 ). That much is clear from the context of this court’s first use of the “other indices” language in Kocsis. See 97 F.3d at 886 (quoting Crady, 993 F.2d at 136 ).

In Kocsis , the quoted language appeared at the end of a list of employment actions short of termination that would nevertheless qualify as adverse. Because that list, like most, was not meant to be exhaustive, the court added the category of “other indices ... unique to a particular situation,” a type of catch-all meant to include employment decisions that, although not universally recognized as negative, would likely be viewed as adverse by an employee in a particular setting. See, e.g., Molnar v. Booth, 229 F.3d 593, 600 (7th Cir. 2000) (applying Crady and concluding that a school principal’s act of taking away the supplies of an art teacher constituted an *271 adverse employment action because the supplies were “necessary for her to be able to perform her assigned job”).

What, then, are the “other indices” unique to Keeton’s situation that convert an otherwise legitimate lateral transfer into an adverse employment action? The majority’s discussion seems to turn on three factors: (1) that Keeton’s transfer was a direct result of unlawful discriminatory conduct on the part of his supervisor; (2) that Keeton’s wife suffered from a back problem that prevented her from accompanying him to Cannonsburg; and (3) that Keeton chose to maintain two residences, one in each town.

The first factor, however, is common to all cases brought under federal anti-discrimination laws. That is, all plaintiffs in sexual harassment suits brought under Title VII necessarily must allege that their employers subjected them to discrimination “because of’ their sex. See 42 U.S.C. § 2000e-2a(1) (2000) (prohibiting discrimination “because of [an] individual’s race, color, religion, sex, or national origin”); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 , 118 S.Ct. 998 , 140 L.Ed.2d 201 (1998) (observing the Title VII “is directed ... at ‘discriminat[ion] ... because of ... sex’ ”) (citation omitted) (emphasis removed). The only distinction between the run-of-the-mill employment discrimination case and the present case is that Flying J, unlike most defendants, does not contest the charge that Keeton was harassed by his former supervisor.

But that distinction is really no difference at all, because a finding of no adverse employment action typically requires the court to assume the truth of the plaintiffs other allegations. See, e.g. Kocsis, 97 F.3d at 885 (assuming, in an ADA case, that the plaintiff was disabled when it held that she had not suffered an adverse employment action); Sanchez, 164 F.3d at 532 (resolving the adverse-employment-action inquiry without questioning the other aspects of the plaintiffs ADEA claim). The present case, in other words, is conceptually analogous to all anti-discrimination suits in so far as the employment decision that the plaintiff claims is adverse is allegedly a product of the defendant’s discriminatory motives or behavior. Flying J’s admission that Keeton was transferred as a solution to his supervisor’s discriminatory conduct therefore does not obviate the need to conduct a wholly separate analysis as to the adversity of the transfer.

The other two factors certainly establish that the transfer was inconvenient to Kee-ton’s personal life, but our cases make clear that “mere inconvenience” is not enough. Instead, the employer’s decision must have a materially adverse effect on the terms and conditions of the person’s employment. Kocsis, 97 F.3d at 886 ; see also Haimovitz v. United States Dept. of Justice, 720 F.Supp. 516, 526 (W.D.Pa. 1989) (“Although plaintiff may have concluded that such a relocation would adversely affect his personal life, the [anti-discrimination laws] only address[] those business decisions [that] adversely affect one’s employment opportunities.”). Indeed, if these second two factors are the true basis for finding Keeton’s situation sufficiently “unique,” one wonders whether the result would be different if Keeton were unmarried, or widowed, or if the household occupant suffering from serious physical problems were a parent, a child, or the family pet, instead of a spouse.

I believe that the majority’s failure to provide any guidance beyond the facts of the present case is unsatisfactory because today’s decision, if followed, will require employers to examine the personal characteristics and living situations of each affected employee before taking any action that might even marginally change that *272 person’s life. In essence, the majority reads the standard catch-all language of “other indices” as encompassing the collateral effects that employment decisions might have on the personal or family life of the affected employee. This reading, I fear, will force courts to depart from the settled ground of objective inquiry and instead require them to probe whether, under the plaintiffs specific life circumstances, the employment decision could be viewed as materially, adverse. Once again, caselaw and policy considerations counsel against importing this type of subjective test into a crucial step of our Title VII analysis.

B. A plaintiffs subjective preferences and characteristics should not be considered in the adverse-employment-action inquiry

This court has consistently applied an objective standard in evaluating both the adverse-employment-action prong of the anti-discrimination laws and claims of constructive discharge. See, e.g., Strouss v. Mich Dep’t of Corr., 250 F.3d 336, 342 (6th Cir.2001) (explaining that a lateral transfer could.be an adverse employment action “if the conditions of the transfer would have been objectively intolerable to a reasonable person”) (internal citation omitted); Policastro, 297 F.3d at 540 (employing an objective, “reasonable person” standard). Although the majority purports to apply an objective standard in the present case, its analysis belies that contention.

The majority recognizes that Keeton agreed to relocate in his initial job application, that he agreed to the transfer to Cannonsburg when Abdalla offered it to him, and that “Keeton did not present any evidence that Cannonsburg was objectively a worse location than Walton.” Maj. Op. at 264. Notwithstanding these facts, the majority concludes that a reasonable person who has twice agreed to relocate suffers a materially adverse change in the terms and conditions of his employment when a geographic, lateral transfer takes place. This is so, the majority says, because Keeton originally agreed to relocate “for advancement within the company and not as a result of unlawful sexual harassment.” Maj. Op. at 265. What renders the lateral transfer here adverse in the eyes of the majority, then, are not the objective effects of the transfer, but rather Keeton’s subjective expectations as to the reasons for being transferred and the particular circumstances of his family life. This subjective analysis stands in stark contrast to the objective standard normally used, which examines the employment decision from the point of view of a reasonable person, not that of a person who expected to be transferred for only one reason and whose spouse is unable to move.

The majority’s failure to acknowledge the subjective nature of its analysis is not surprising, given that our sister circuits have uniformly endorsed an objective standard for analyzing potentially adverse employment actions. See Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1448 (11th Cir.1998) (finding “no case, in this or any other circuit, in which a court explicitly relied on the subjective preferences of a plaintiff to hold that [the] plaintiff had suffered an adverse employment action”). Such a standard is consistent both with the one used to evaluate “employers’ claims and defenses” in suits brought pursuant to federal anti-discrimination laws, id. at 1450 , and with the purpose behind the adverse-employment-action requirement— namely, “to prevent the kind of claims based upon trivial employment actions that a strictly literal reading of’ the laws would allow. White, 364 F.3d at 799 .

*273 In contrast, evaluating the subjective impressions or motivations of either the employer or the affected employee threatens the integrity and coherence of the McDonnell Douglas framework. The Eleventh Circuit cogently explained in Doe that adopting a test for adversity based on a plaintiffs subjective preferences

would create an odd situation in which a plaintiff could use the McDonnell Douglas test not only to avoid having to prove directly his employer’s discriminatory intent, but also to force his employer to either disprove the plaintiffs own subjective feelings or concede an element of the plaintiff’s prima facie case.

Doe, 145 F.3d at 1451 . On the other hand, allowing a plaintiff to base the adversity of the employment decision on the strength or persistence of an employer’s discriminatory animus, as the magistrate judge did in the present case, confuses proof of discrimination, whether direct or circumstantial, with evidence that the victim of that discrimination has suffered a materially adverse change in the terms or conditions of his employment. This diminished quantum of proof reduces the efficacy of the adverse-employment-action element as a filter for shielding businesses from liability for employment decisions that do no more than inconvenience an employee. See White, 364 F.3d at 799 .

Applying an objective standard, numerous decisions have made explicit what was implicit as far back as Spring — that, in Judge Posner’s words, “a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996) (emphasis in original); accord Doe, 145 F.3d at 1449 (agreeing that “a truly lateral transfer cannot be adverse”); Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999) (“[A] plaintiff who is made to undertake or who is denied a lateral transfer ... does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment .... ”). Unfortunately, the majority deviates from this bright-line, objective rule and concludes that Keeton’s transfer to Cannonsburg, which the parties agree did not alter “the terms, conditions, or privileges” of his employment, Brown, 199 F.3d at 457 , is somehow distinguishable from the lateral transfers that courts uniformly deem not to be adverse.

In the end, the majority simply fails to demonstrate how Keeton’s transfer to Cannonsburg, a move in which he acquiesced, was “objectively equivalent” to a demotion. See Doe, 145 F.3d at 1450 (observing that the circuits “have only held transfers to be adverse where the transfers were objectively equivalent, at least to some degree, to demotions”). However inconvenient it may have been, Keeton’s transfer to Cannonsburg was far from a demotion. He retained the same job title, pay, and benefits, including his salary for the week that it took him to take up his new post. Yet instead of rewarding Flying J for its prompt actions in remedying the transgressions of a rogue supervisor, the majority punishes the company and thereby chills the type of corrective action that Title VII should encourage, not deter.

C. The majority’s opinion undermines the policies underlying Title VII

The policies underlying recent decisions in this area by the Supreme Court also weigh strongly in favor of reversal. In defining the various theories of liability under Title VII and the defenses thereto, the Supreme Court has sought to encourage employers to implement internal mechanisms for weeding out discriminato *274 ry conduct. See Burlington Indus., 524 U.S. at 765 , 118 S.Ct. 2257 ; Faragher v. City of Boca Raton, 524 U.S. 775, 807 , 118 S.Ct. 2275 , 141 L.Ed.2d 662 (1998) (establishing an affirmative defense, in hostile-work-environment cases, for employers who put in place procedures to prevent and promptly correct sexually harassing behavior). But the Court in Burlington Industries and Faragher specifically refused to tie the hands of companies by requiring, as a matter of law, that they promulgate antiharassment policies in order to invoke the affirmative defense. See Faragher, 524 U.S. at 807 , 118 S.Ct. 2275 . Title VII, at least in the Court’s view, affords companies the flexibility necessary to devise internal remedies to discriminatory conduct and personnel problems.

Here, however, the majority is essentially telling Flying J that only one course of action in response to Keeton’s allegations would have permitted it to avoid liability- — • the firing or transferring of Judy Harrell, Keeton’s supervisor. Instead, Flying J acted promptly on Keeton’s complaint, knowing that it could not keep Keeton and Harrell at the same location. But, as the majority holds today, Flying J was unable to avoid liability by transferring Keeton, despite his expressed willingness to move to the district managed by Abdalla. The only solution, therefore, would have been to fire or transfer Harrell, the store manager, a move that would have required identifying another location with a managerial vacancy or displacing another worker. Nothing in Title VII commands that a company’s options for handling discriminatory conduct be so limited.

Outside of the broader policy implications of the majority’s reasoning, I believe that today’s decision sends the wrong message to employers. Flying J acted expeditiously in responding to allegations of sexual harassment against one of its employees, quickly corrected a supervisor’s unlawful abuse of power, and immediately reinstated the employee who was wronged. This company, and others like it, must continually monitor and correct discriminatory conduct on the part of their supervisory employees. Unfortunately, today’s decision both reduces companies’ incentives to combat discriminatory behavior and limits the solutions that those companies can lawfully implement in the face of such behavior. When combined with a lack of support in the decisions of this or any other court, these pernicious policy consequences counsel against reaching the result that the majority does today.

III. CONCLUSION

Keeton is undoubtedly a sympathetic plaintiff, and the majority’s desire to reach beyond Keeton’s own arguments and find a basis for affording him relief is therefore understandable. Judicial restraint, however, cautions against adopting a position whose merits have not been advocated even by the party seeking relief. See, e.g., McCleskey v. Zant, 499 U.S. 467 , 523 n. 10, 111 S.Ct. 1454 , 113 L.Ed.2d 517 (1991) (explaining the principle that an appellate argument, even if presented to the reviewing court by an amicus, will not be considered “when that argument ... was not advanced ... by the party on whose behalf the argument is being raised”). This cardinal principle is especially true where, as here, endorsing that untested position constitutes a marked deviation from consistent precedent and from the policies underlying the federal laws at issue.

Instead of breaking new ground, as the majority does, I would simply adhere to the existing caselaw and reaffirm the conclusion that those cases universally reach- — that geographic inconvenience alone does not convert a purely lateral *275 transfer into an adverse employment action. This is true even when, as here, the transfer is the employer’s solution to quid pro quo harassment caused by the employee’s supervisor. I would therefore reverse the judgment of the district court and remand the case with instructions to grant Flying J’s motion for judgment as a matter of law. From the majority’s contrary conclusion, I respectfully dissent.