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After harassment, be careful who you transfer

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in Discrimination and Harassment,Human Resources

If you fear for an employee’s safety after he has complained about a hostile work environment, think twice before transferring him instead of the person or people who are the source of the hostility. Transferring the victim may be seen as retaliation for having complained about harassment.

Recent case: Marvin, who is black, complained after a supervisor allegedly waved a noose at him in an intimidating manner. The employer fired the supervisor, who had several family members and friends among the employees working at Marvin’s job site. Some of them were upset about the supervisor’s discharge, so the company decided to transfer Marvin (over his objections) to another location.

Soon after, the company went through a round of layoffs, and Marvin lost his job.

That’s when he sued, claiming that his transfer was, in effect, punishment for complaining about his supervisor’s racial harassment. The employer tried to argue that Marvin’s job was eliminated because he had weaker skills than other employees.

Because the employer wasn’t specific about Marvin’s alleged skills deficiency, the court decided to send the lawsuit to trial. It also said the involuntary transfer might be retaliation. (Bagley v. Bel-Aire, No. 13-17386, 9th Cir., 2016)

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