When can an employee’s transfer be considered illegal retaliation?

To bring a case of retaliation for complaining about discrimination or harassment, employees must show that they suffered some sort of “adverse employment action” in response to their complaint.

That’s easy if the employee is demoted, fired or transferred to a less desirable position. But what if the worker experiences more subtle retaliation, like having to do more work or being transferred to a potentially better position that doesn’t pan out?

Can such potential “sabotage” constitute an adverse employment action? As this case shows, the answer is “yes.” And it’s another reason why you need to spread the word to supervisors never to punish workers in any way for filing (or even voicing) complaints.

Recent case: Ruth worked in a factory, assembling mattresses. She complained to several managers that her immediate supervisor was sexually harassing her by asking her out, commenting on her body and invading her personal space.

Finally, after several attempts to remedy the problem, she spoke with a manager who told the supervisor to stop. He did.

Shortly after, Ruth was offered a transfer to an assembly line where she could be paid extra based on productivity. She accepted. But soon it was apparent that she was always assigned to a machine that didn’t work as well as the other machines and that usually required two operators. Also, while her co-workers usually helped each other out and supervisors made sure materials were placed close to workstations, Ruth’s station was ignored. This meant she couldn’t meet her quotas and didn’t earn bonus payments.

Eventually, Ruth was discharged after she fell, went out on unemployment leave and allegedly didn’t respond to an offer of light-duty work. She sued, alleging, among other claims, retaliation for reporting sexual harassment.

The employer argued that she hadn’t suffered an adverse employment action and that a reasonable employee wouldn’t have been dissuaded from reporting harassment if she knew she would be transferred to a job that potentially paid more.

The court didn’t buy the argument. It said a reasonable employee might have been dissuaded had she known her work might be sabotaged. The case goes to trial. (Lopez v. Sonic Components, No. 3-14-CV-0283, ND TX, 2015)

Final note: Ruth also claimed that she had been set up to quit after being offered a light-duty position. She received a letter at home offering the position, signed the offer and placed it in the mail. She was instructed to contact a specific supervisor to arrange for her return.

The same day she signed the letter, she went to the factory. A different supervisor demanded to know what she was doing there. He told her he didn’t know anything about the letter or the offer and she should leave immediately. Ruth left, thinking she had been fired. The letter arrived at the company, but since Ruth never contacted the supervisor she was told to contact, she was terminated for failing to return to work.

The court sided with the employer on the alleged discharge, reasoning that Ruth should have contracted the person named in the letter and not been dissuaded by the reception she got when she showed up in person.