Sometimes, an employee isn’t a good fit for a particular job assignment and gets frustrated that things aren’t working out. Employers that transfer such an employee with the genuine intent to give her a fresh start elsewhere probably won’t find themselves in legal hot water.
That’s true even if the employee had filed an EEOC charge—as long as the new job has similar duties, responsibilities, pay and other benefits.
Recent case: Vester Scurlock-Ferguson worked in the city of Durham’s HR department and complained that she was being treated unfairly because of her race. She also said other employees were spying on her.
The city moved Scurlock-Ferguson to another department, with the same pay and benefits. The goal was to give her a fresh start with a new set of co-workers and supervisors.
Scurlock-Ferguson continued to request a transfer back to her old position, but her supervisor wanted to keep the employee with whom Scurlock-Ferguson had swapped positions.
Instead of settling in, she sued, alleging retaliation for a prior EEOC complaint she had filed.
The trial court tossed out her case. It reasoned that a lateral transfer to let an employee start anew wasn’t the sort of thing that would discourage a reasonable employee from complaining about alleged discrimination in the first place. Since that’s the test for retaliation, it said she had no case.
Scurlock-Ferguson then appealed to the 4th Circuit Court of Appeals. But that court refused to reverse the decision, concluding that the transfer didn’t amount to an adverse employment action and wasn’t retaliation. (Scurlock-Ferguson v. City of Durham, No. 09-1719, 4th Cir., 2010)
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