The threat of a retaliation lawsuit—for anything that would dissuade a reasonable employee from complaining about discrimination in the first place—can make supervisors feel like they have to walk on eggshells when dealing with employees who complain. That kind of overreaction can make goodimpossible.
Instead, instruct managers and supervisors to document the reasons behind any workplace changes that may have an adverse impact on employees who have complained about discrimination. Make sure those reasons have a solid basis in business necessity. Impartially apply all new rules to all employees. Changes that affect all employees aren’t retaliation.
Recent case: Linda Dunn worked as a recreational therapist at a Los Angeles County Department of Mental Health center. She generally worked a four-day schedule from 7:30 a.m. until 6 p.m., allowing her to have three-day weekends. She got good reviews and was commended for being the “most punctual” employee.
Then she got into a confrontation with a client in the parking lot—the woman threatened to harm Dunn because of a perceived delay in obtaining housing benefits. Dunn complained immediately, saying she feared the woman and demanding that the client be transferred to another center.
Her supervisors explained that they felt the client should continue to get counseling at the same center. However, they did transfer her to another counselor and then took steps to make sure Dunn would not have any contact with the client.
Because security guards were only on duty between 8 a.m. and 5 p.m., they changed Dunn’s schedule to a five-day week. That way, a guard could accompany her to and from her car and she didn’t have to come to work or leave while it was dark. Plus, center management promised Dunn she would be notified whenever the client showed up, either for an appointment or unannounced.
Apparently those moves didn’t satisfy Dunn. Instead, she went to the police and obtained a restraining order that required the client to stay away from her. As a result, the client was reassigned to another facility.
Even so, Dunn’s new schedule remained in place. Then, the center told Dunn she had to begin sharing an office with a co-worker.
Dunn sued, alleging that the changed schedule was retaliation for complaining about an unsafe workplace. She said the new schedule and the shared office were punishment.
The department told the court that it didn’t immediately change the schedule back because the client might still threaten Dunn when security personnel were not present. It also insisted it had the inherent right to manage its workforce, including determining where employees did their jobs.
The court accepted that explanation and said the revised schedule and office sharing were within the department’s rights. The changes weren’t serious enough to constitute retaliation. (Dunn v. Los Angeles County Department of Mental Health, No. B219119, Court of Appeal of California, 2011)
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