Employees who complain of harassment may actually be experiencing a personality conflict. Circumstances that lead someone to see harassment based on race, disability or gender may be nothing more than the result of difficulty getting along with others.
If your internal investigation reveals no real discrimination, you may be tempted to move the feuding parties as far away from each other as possible. But that may backfire, especially if the person you transfer is the one who complained of discrimination in the first place. He or she may see the transfer as punishment and sue for retaliation.
The answer is to make sure that a substantial period of time passes before the transfer, unless the employee being transferred agrees to take the position. It wouldn’t hurt to have the employee sign a release, too. Otherwise, expect a lawsuit.
Recent case: Drora Kemp, who holds a master’s degree in library science, worked for the Metro-North Railroad as manager of the legal department’s administration and support services. She almost immediately had conflicts with some of the department’s female attorneys.
After she had breast cancer, she claimed she had even more trouble with both her supervisor and some of the attorneys. The railroad called in a law firm to investigate, and the final report found no evidence of disability discrimination. Instead, it pointed to a personality conflict as the underlying problem. The report recommended a transfer. During the next 15 months, the railroad looked for other positions for Kemp while she took increasingly longer medical leaves for various ailments.
When Kemp couldn’t commit to a return date to a new position, the railroad fired her. She fired back with a retaliation lawsuit. But the court dismissed her case, concluding that there was no evidence of retaliation, in part because so much time passed between the original internal complaint and the new position offer. (Kemp v. Metro-North Railroad, No. 04-CIV-9926, SD NY, 2007)
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