In one case, an HR manager who reported to top management made a complaint. Soon thereafter he lost all his staff, was moved to another area, and found himself reporting to a middle manager. His new boss said to him, "I don’t know why they sent you to me. I don’t have anything for you to do." The manager kept his pay and his title, but the courts found that the action was an adverse action.
However, in another case, a company moved an employee who had complained about sexual harassment away from the harassing supervisor. The new location involved a slightly longer commute. This action was not found to be adverse, but in fact it was judged to be a reasonable response to the complaint.
Retaliation claims are very fact related, says Moldover, and that makes it especially important that someone with good judgment be there to guide management through the case.
Moldover is currently a Senior Staff Attorney at Lawyers Alliance for New York, providing legal assistance to nonprofit arts organizations serving low-income New Yorkers. At the time of this presentation, she was Of Counsel at Ford & Harrison LLP. Moldover’s comments came at the Legal and Legislative Conference of HRNY, the New York City chapter of SHRM.
They’re Not Over ‘Til They’re Over
It’s very important, Moldover says, for HR and compensation managers involved in retaliation situations to realize that their role doesn’t end when the case ends. “You have to keep an eye on management as long as the employee who complained is employed,” she says.
What Rises to the Level of ‘Materially Adverse Action’?
One of the keystones in a claim of retaliation is that the employee must have suffered a materially adverse action. As a result of the Burlington Northern case, Moldover says, we have a definition for retaliation: an action that would dissuade a reasonable employee from making or supporting a charge. Furthermore, the action need not be employment related.
In the Burlington case, a supervisor constantly told a female worker, "Women shouldn’t do this work." Then he started saying other things to her with sexual overtones. When she complained, the company investigated and punished the supervisor by giving him a 2-week suspension without pay and making him go to sexual harassment training.
So far so good, says Moldover. But then, the same day the complaining employee was told about how her complaint was resolved, she was taken off her relatively easy forklift job and given a much harder and more physical job. She didn’t lose pay, seniority, or title, but the court did find that the action was adverse.
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Moldover offered the following examples of other potentially adverse actions:
Lowering benefits. Removing a significant benefit could also be considered an adverse action, Moldover says.
Giving a lower evaluation. Even if the evaluation is only lowered from "superb" to "excellent," it could be considered an adverse action, especially if pay or promotional opportunities are affected.
Transferring to a less desirable position. Transferring a person to another position or office could be adverse, although as noted, in sexual harassment cases, a move may be the best thing to do.
Ultimate employment actions. Naturally, when you take ultimate employment actions, such as firing, demoting, not giving a promotion, or imposing discipline, you are likely taking adverse action.
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Counterclaims Could Be More Retaliation
When an employee files a charge or complains about a manager, the manager’s response is often, "I’m going to sue for defamation!"
You probably don’t want to do that, says Moldover. First of all, that case is going to be hard to win, and it’s going to take resources and engender bad publicity. And if that’s not enough, the countersuit itself could be viewed as retaliation.
In tomorrow’s Advisor, we’ll cover Moldover’s tips for dealing with management and take a look at a the one-stop solution for HR challenges—HR.BLR.com.
The fight against retaliation claims needs to begin before the underlying complaint is ever made. It’s clear that many managers just don’t understand how broadly retaliation can be defined, so they need the training early and often.