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Simple transfer could be considered retaliation

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in Discrimination and Harassment,Human Resources

Employees who complain about alleged discrimination, either to their employer or to a government agency such as the EEOC, are protected from retaliation.

However, the retaliation has to be something that would persuade a reasonable employee not to complain in the first place. Ordinarily, that re­quires a so-called adverse employment action, such as discharge or demotion.

Lesser actions, such as a lateral transfer, don’t count. That is, unless that transfer carries with it serious consequences—such as a dramatically longer commute.

Recent case: Crystal was a night custodian for a school district when she complained about alleged race discrimination. After the complaint, she was involuntarily transferred to another school within the district that required her to walk miles to work, jeopardizing her safety during her commute. (Crystal was homeless and didn’t have a car or other transportation available.) She sued.

The court said her case could proceed, even though something as innocuous as a lateral transfer wouldn’t ordinarily be considered retaliation.

In this case, if Crystal can prove that a reasonable worker in her situation would have been dissuaded from complaining if she knew the consequence was having to walk many miles to and from work, she can show she suffered retaliation. (Webb v. Round Rock Independent School Dis­­trict, No. 13-50936, 5th Cir., 2014)

Final note: Seemingly trivial job changes could be employment deal-breakers for some employees. A shift change, for example, could interfere with an employee’s ability to arrange child care.

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