Reassignment to a Less Desirable Position and Retaliation

reassignment retaliationAs the Supreme Court recently pointed out, one “good” way to discourage an employee from bringing discrimination or harassment charges would be to insist that he spend more time performing the more arduous duties and less time performing those tasks that are easier or more agreeable to that employee. This is presumably why the EEOC has consistently found “retaliatory work assignments” to be a classic and “widely recognized” example of “forbidden retaliation”. 2 EEOC 1991 Manual section 614.7, pp. 614-31 to 614-32. See also 1972 Reference Manual section 495.2 , noting the decision by EEOC involving an employer’s ordering an employee to “do an unpleasant work assignment in retaliation” for filing a racial discrimination complaint.  Employers are temped to use this method of retaliation while hoping that the employee will get fed up with the undesirable work and will eventually quit, because this kind of more subtle type of retaliation is way more harder to prove than when an employee who complained about discrimination or harassment simply gets fired.

Of course, reassignment of job duties is not automatically actionable as workplace retaliation and it depends on the circumstances of a particular case, and should be judged from the perspective of a reasonable person in the aggrieved employee’s position.

In one recent case of significant importance – Burlington Northern & Santa Fe Railway Co. v White (2006), the US supreme court noted that a 37 day suspension of a worker was actionable as retaliation, even though the employee was reinstated with full back-pay after that suspension. This is because, the court stated, living 37 days without pay while needing to support your family and not knowing, whether you will return to work and when was more than sufficiently adverse employment action, which is not fully compensated by back-pay alone. The case further held that pretty much any tangible action by the employer which would discourage an employee from voicing discrimination and harassment complaints could be considered a protected activity within the meaning of anti-retaliation laws.

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