Ever since the Supreme Court decided the White v. Burlington Northern case in 2004, retaliation lawsuits have been all the rage.
It’s easy to see why. Employees don’t have to win their underlying discrimination claims to prove retaliation—they just have to show that their employers punished them for complaining about some form of discrimination.
That’s often not hard to do. If an employee can show that a reasonable employee would have been dissuaded from complaining in the first place if she were retaliated against in the same way, she can win a retaliation case. You may remember that in White, the retaliation involved a transfer from a more “prestigious” forklift operator position to a track labor job.
But lately there’s been good news for employers. Courts have been refining the retaliation standard for almost five years and have begun concluding that truly minor work changes aren’t retaliation.
As the following case shows, just because an employee believes she’s been transferred to a less prestigious assignment doesn’t mean she has suffered retaliation.
Recent case: Sharon Lucero, who is Hispanic, worked as a high school English teacher. She was assigned to teach a new Advanced Placement (AP) English course plus regular 12th-grade English.
Lucero had some problems in the classroom, which allegedly stemmed from some students’ prejudice against Hispanics. She also told her principal that students were harassing her with vulgarities. For example, students left several Playboy magazines in her classroom.
The following school year, Lucero was reassigned to teach 7th-grade English. The principal, citing specific examples, said she hadn’t done a satisfactory job teaching the AP course.
She sued, alleging the transfer was retaliation for previous complaints about race discrimination and sexual harassment.
Her argument boiled down to lost prestige. She lost no pay, no benefits or any other tangibles. In fact, she worked in the same building and under the same conditions. The only difference was the grade she taught. She said other employers would find her a less attractive candidate because she taught middle school rather than 12th grade.
The court said it wasn’t retaliation because no reasonable teacher would withhold a discrimination complaint for fear of a transfer. Subjectively, Lucero might believe that the assignment was less prestigious, but objectively it was not. Plus, the court noted that the school district labor contract specifically says has the right to reassign teachers as it sees fit. (Lucero v. Nettle Creek Schools, No. 08-2943, 7th Cir., 2009)
Advice: Warn all managers and supervisors against making statements or acting in ways that might seem retaliatory. That means no snide comments on the merits of any underlying discrimination complaint. Instead, make sure you handle the complaint professionally and promptly, no matter how frivolous you think it is.
Juries look for professionalism from employers. Don’t give them anything they can use as an excuse to connect the underlying complaint to a later transfer or reassignment.
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