Some employees think that just because they settled a previous discrimination complaint, anything adverse that later happens to them must be retaliation. That’s not true.
While a real adverse employment action may trigger a retaliation claim, many minor changes aren’t truly adverse. For example, moving an employee to a different office without changing anything substantial about his job probably isn’t retaliation.
Recent case: Richard settled a claim he brought against his employer, the U.S. State Department, for discrimination he allegedly suffered after his newborn daughter needed extensive medical care. Then, several years later, his new supervisor moved Richard’s office to another floor in the federal building where he was assigned to work.
Richard sued, alleging that the move was retaliation for his earlier, successful discrimination lawsuit.
The government argued that wasn’t the case. While Richard was moved to another floor, his actual job duties never changed, nor did his pay and benefits. Plus, there wasn’t anything particularly negative about the new office—it was merely located on a different floor of the same building.
The court dismissed Richard’s case. It reasoned that employers are free to make reasonable office assignments and that a new office location within the same building isn’t automatically an adverse employment action when nothing else about the job changed. (Higbie v. Kerry, No. 3:11-CV-2636, ND TX, 2014)
Final note: Of course, if you move an employee from a modern office to a storage closet, that might be considered an adverse action.
Retaliation is anything that would make a reasonable employee rethink having complained about alleged discrimination in the first place. The focus is on the so-called “reasonable employee,” not the individual employee who has filed the retaliation lawsuit. It’s an objective focus.
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