Retaliation is anything that would dissuade a reasonable employee from complaining about discrimination in the first place. That’s not to say every little negative thing that happens following a discrimination complaint is retaliation.
Take, for example, a transfer to another position or shift. Most courts won’t consider that such a move would dissuade a hypothetical reasonable employee from making an initial discrimination complaint. But if that employee has a young child and can’t get child care as a result, that might tip the scales.
On the other hand, if the only thing that happened was a supervisor mentioning a possible transfer, no retaliation occurred.
Recent case: Claudette Goodman worked for a security company and complained that she was not being paid as much as male employees. She claimed that after she complained, she heard rumors that she might be transferred to a different shift. That potential change would have affected her child care arrangements. She found another job and quit.
Then she sued, alleging retaliation.
The court threw out the case, reasoning that the mere threat of a transfer wouldn’t be enough to dissuade a reasonable employee from complaining in the first place. (Goodman v. NSA, No. 09-2043, 7th Cir., 2010)
Final note: Decisions like this one make it harder for employees to lie about alleged retaliation. The employer showed it never transferred Goodman, casting doubt on her claim she was threatened with a transfer.
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