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Transfer worker who needs a fresh start; it’s not retaliation if pay, benefits are equal

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in Employment Law,HR Management,Human Resources

Sometimes, an employee simply isn’t a good fit for a particular job assignment. But if you transfer such employees with a genuine intent to give the person a fresh start—and not a hidden motive of discrimination—you’ll likely survive a legal challenge.

Just make sure the new job has similar responsibilities, pay, benefits and working conditions.

Recent case: Vester Scurlock-Ferguson, an HR employee for the city of Durham, N.C., complained that she was being treated unfairly because of her race. She also said employees were spying on her.

The city transferred her 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. But Scurlock-Ferguson continued to request a transfer back to her old position. The city refused.

Instead of settling in, she sued, alleging that the transfer was retaliation for a prior EEOC complaint that she’d filed.

The court tossed out her case. It said a lateral transfer to let an employee start anew didn’t amount to an adverse employment action and wasn’t the sort of thing that would discourage a reasonable employee from complaining about alleged discrimination. Since that’s the test for retaliation, she had no case. (Scurlock-Ferguson v. City of Durham, No. 09-1719, 4th Cir., 2010)

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