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Offer legit ‘fresh-start’ transfer without fear of being punished for retaliation

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in Employment Law,HR Management,Human Resources

Sometimes, an employee isn’t a good fit for a particular job assignment and becomes frustrated that things aren’t working out.

Employers that transfer such an employee with the genuine intent to give her a fresh start in another department probably won’t run into legal hot water. That’s true even if the employee had filed an EEOC charge—as long as the new job has similar duties, responsibilities, pay and other benefits.

Recent case: Vester Scurlock-Ferguson, who worked in the city of Durham’s HR department, complained she was being treated unfairly because of her race. She also said employees were keeping a close eye on her, something that she perceived as “spying.”

The city transferred Scurlock-Ferguson to another department, with the same pay and benefits, explaining that it wanted to give her a fresh start with a new set of co-workers and supervisors.

Instead of settling in, she sued, alleging retaliation for a prior EEOC complaint she had filed. She also repeatedly requested a transfer back to her old position, but her supervisor wanted to keep the employee with whom Scurlock-Ferguson had swapped positions.

The court tossed out her case. It reasoned that a lateral transfer to give an employee a fresh start wasn’t the sort of thing that would discourage a reasonable employee from complaining about alleged discrimination in the first place. Since that’s the test for retaliation, she had no case. (Scurlock-Ferguson v. City of Durham, No. 1:01-CV-1122, MD NC, 2009)

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