When an employee requests a transfer after complaining about alleged harassment, don’t jump at the opportunity—only to place him in an unpleasant new environment. Merely honoring a request to be moved isn’t a defense against a retaliation claim.
That’s true even if you provide the same pay and don’t change benefits, seniority or any other aspect of the employment relationship.
Recent case: Jaime Marroquin, who is Hispanic, worked as a welder for the city of Pasadena. When a new supervisor arrived on the scene, things didn’t go well. Marroquin claimed the supervisor grabbed him in the crotch 20 to 25 times, and shouted abuse at the same time. Marroquin said he was called a “dumb f––––– wetback” and a perro (Spanish for dog) many times.
Marroquin complained to the higher-ups, but nothing happened. He then filed an EEOC complaint and asked for a transfer to the tire department. But instead,transferred him to the wastewater department, where Marroquin said he was relegated to shoveling human waste in sewers. There were no changes in the other terms and conditions, such as wages or benefits, but Marroquin was told he’d be fired if he didn’t accept the transfer.
He sued, and the court ordered a trial, concluding that the employer couldn’t escape liability just because Marroquin asked for a transfer. A transfer intended to demean and punish an employee who complained about discrimination can be retaliation. (Marroquin v. City of Pasadena, No. H-06-1453, SD TX, 2007)
Final note: This looks like a classic case of trying to wear down an employee perceived to be a troublemaker. The better approach would have been a prompt investigation of Marroquin’s complaints, followed by a transfer to an equivalent position.
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