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Ensure taking leave is employee’s choice

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in Discrimination and Harassment,Human Resources

Forcing someone to take leave when she doesn’t want to can be considered an adverse employment action and become the basis for a discrimination or retaliation lawsuit.

Recent case: Susan worked as a corrections counselor for the New York State Department of Cor­­rec­­­­tions. She claimed that her supervisor made unwelcome sexual ad­­vances, which she rebuffed.

But then, she contended, she had to endure a long list of alleged retaliatory actions, including being ordered to take a leave of absence and to undergo a mental assessment. She returned to work after apparently getting a clean bill of health.

Then she sued, alleging among other claims that her forced leave of absence was an adverse employment action meant to punish her for complaining about sexual harassment. The corrections department argued that a forced leave wasn’t an adverse employment action and therefore couldn’t be retaliation.

The court disagreed, concluding that being forced out on leave can be an adverse employment action. Susan’s forced-leave claim can go forward. The court did dismiss her underlying sexual harassment claim because the incident occurred more than 300 days before she complained to the EEOC. (Taedgar v. New York, et al., No. 1:12-CV-0549, ND NY, 2013)

Final note: Remember that retaliation is anything that would cause a hypothetical reasonable employee to refrain from lodging a complaint in the first place.

It doesn’t have to be a major punishment like termination or a demotion. However, it can be something otherwise important like a shift change that makes it difficult to arrange child care, a substantially increased workload or a transfer to a less convenient location.

In other words, retaliation is anything that would cause the employee to rethink complaining if she knew the consequences ahead of time.

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