When people have a history of conflict, it makes sense to ensure they don’t have to interact with one another. How you go about separating them may mean the difference between staying out of court or losing a costly successful retaliation or discrimination lawsuit.
If transferring a worker seems to be the best solution, make sure that person ends up with a substantially equivalent position. That means a job with the same pay, benefits and other employment characteristics.
But the new job doesn’t have to be identical to the old one. You don’t, for example, have to worry about the transferred employee’s subjective preferences.
Recent case: Rena McGarry worked as a nurse at a medical center, assigned to the neurosurgical intensive care unit (NSICU). A patient accused her of breaking his laptop, shouting at him, rummaging through his belongings and slapping him. McGarry denied the charges.
The medical center suspended McGarry without pay while it investigated the allegations.
Two weeks later, it concluded that there was insufficient evidence to back up the patient’s claims. McGarry was notified in writing that she would receive back pay, but that she was being moved to another neurology floor to separate her from the patient. Her salary, benefits and job duties remained substantially the same.
But McGarry never showed up for her new assignment. Instead, she sued, alleging various types of discrimination and claiming she had no choice but to quit. She said she was constructively discharged because she preferred working in the NSICU.
The court rejected her claim. McGarry couldn’t show her working conditions were so intolerable that a reasonable employee would have no choice but to quit. (McGarry v. University of Mississippi Medical Center, 5th Cir., 2009)
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