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Even small changes in job status can be retaliation

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

You’ve heard us say it before: Employers that give in to the temptation to punish a troublemaker for complaining about alleged discrimination set themselves up for a retaliation lawsuit.

The irony, of course, is that often the underlying discrimination complaint will amount to nothing, while the retaliation case snowballs out of control. Even minor changes to an employee’s work schedule, routine or tasks may mean a large retaliation jury verdict.

Tell supervisors and managers: Hands off the complaining employee!

Don’t change her schedule, deny breaks, transfer her to another location or do anything that might dissuade a reasonable person from bringing discrimination charges in the first place. As the U.S. Supreme Court said in its landmark Burlington Northern retaliation case, while a “change in an employee’s work schedule may make little difference to many workers, it may matter enormously to a young mother with school-age children.”

Recent case: Beverly Owens-Floyd worked for the city of Chicago—first as a pharmacy technician and later as a clerk in the Department of Public Health. The city has a desk audit process in which an HR professional “shadows” an employee to see if she is performing more or fewer functions than her job description calls for. Then, her job description is adjusted accordingly. In Owens-Floyd’s case, her first desk audit netted her a promotion from Clerk III to Clerk IV.

About a year later, Owens-Floyd asked the HR office to perform another desk audit, apparently believing she again was doing higher-level work than her job description called for. This time, the HR office refused, apparently believing Owens-Floyd already was properly classified.

Then Owens-Floyd filed an EEOC complaint alleging age discrimination, and that someone in the HR office had told her they weren’t promoting any older employees.

Shortly after, her employer sent Owens-Floyd to work on files in the basement, where she claimed there were spiders and other assorted nasty creatures. Next, it transferred her to another location, adding about an hour to her daily commute.

She did not ask for, nor did she want the transfer, mainly because she had a young teenage son and she was worried that he was being recruited to join a Chicago gang. She wanted to remain as close to home as possible to keep a close eye on him.

Owens-Floyd added retaliation to her claim, alleging the transfer, which was not a demotion and didn’t change her benefits or any other aspect of her job other than her work location and commute, was punishment for her EEOC complaint.

As you may have guessed, the court dismissed her age discrimination claim because there was too little evidence. But the court did order a trial on the retaliation claim. It said it was conceivable that a reasonable employee who was worried about staying close to a vulnerable child might be dissuaded from complaining about discrimination if she thought it might mean being placed farther away from the teen. (Owens-Floyd v. City of Chicago, No. 05-C-3182, ND IL, 2007)

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