The law prohibits employers from punishing employees who complain about discrimination or harassment in the workplace. Yet, many employers still do. Common forms of retaliation are termination, demotion, reduction in salary or discipline. Another form of retaliation can be a change in job assignment, shift or work schedule. That was the case recently for a police officer in California.
Lavalais v. Village of Melrose Park
Under the law, retaliation means taking an "adverse employment action" against an employee for "engaging in legally protected activity." In a recent Seventh Circuit Court of Appeals opinion, the court held that a transfer from one shift to another may be sufficient to constitute an adverse employment action. An "adverse employment action" means an adverse or negative job action. Sometimes, retaliation is indirect, like unjustified negative performance evaluations. In the case of Kyll Lavalais, he was transferred to the midnight shift after complaining of race discrimination and filing charges of discrimination with the EEOC.
Are all transfers considered adverse?
Usually, a lateral transfer from one position to another, without change in pay, is not considered an adverse employment action. However, in this case, the transfer was found to have a significant impact on Lavalais' job responsibilities. Although he was a Sergeant, he had now become powerless as a supervisor on the midnight shift. The transfer was essentially a demotion.
Courts require that subtle employment actions, such as transfers, serve to "deter a reasonable person in the situation from making a complaint." It was in the case of Burlington Northern v. White that the Supreme Court decided the definition of "adverse employment action" includes reassignment to a less-desirable job. Instead of focusing on financial impact, the courts now look at whether "the alleged adverse employment action is material in that it would dissuade a reasonable individual from reporting harassment or discrimination."
The Definition of Retaliation May Be Expanding
More and more federal courts are finding that job transfers and changes in work assignments can constitute retaliatory adverse employment actions. In Pitts v. Kone Inc., the Michigan court held that a job transfer involving only a one-time bonus and nominal pay increase was an adverse employment action. That court found the transfer was adverse because it resulted in less opportunity for workplace advancement and less prestige for the employee.
If you have been subjected to a change in a less desirable job assignment or transfer, and suspect it may be retaliatory, or if you have questions regarding your employment rights, please contact our firm either online or by calling us at (205) 265-1880.