- A college professor who transferred to another department to get away from alleged sexual harassment will get another chance to show that it amounted to retaliation, the 1st U.S. Circuit Court of Appeals has decided (Carlson v. University of New England, No. 17-1792 (1st Cir., Aug. 10, 2018)).
- Dr. Lara Carlson, a faculty member at the University of New England, alleged that, after she complained about sexual harassment by her supervisor, the employer retaliated, in part, by misleading her about the effect of a transfer to another department. Carlson said she agreed to the move only on the condition that she could keep her classes and continue to do her job, but that the transfer actually reduced her teaching and career opportunities.
- A district court granted summary judgment for the university, finding that because the transfer was voluntary, it was not an adverse employment action. The appeals court disagreed, however, finding that the district court ignored Carlson's argument that the dean led her to transfer out of the department by misrepresenting how the move would affect her professional responsibilities.
Employers can't take adverse employment actions because an applicant or employee has asserted rights protected by equal employment opportunity laws. Whether an action is materially adverse depends on the facts and circumstances of the particular case, according to federal guidance, but job transfers are particularly hard to defend in court.
The U.S. Supreme Court has held that transferring a worker to a harder, dirtier job within the same pay grade, and suspending her without pay for more than a month, even though the pay was later reimbursed, were both "materially adverse actions" that could be challenged as retaliation, the guidance notes. In a similar case, the 11th Circuit held in May that a transfer involving an HR professional who was transferred from an office job to a position at a chicken processing plant where her new responsibilities included "pulling guts from chicken carcasses," was a significant change in duties (Vinson v. Koch Foods of Alabama, LLC, Koch Foods LLC, No. 17-10075 (11th Cir. May 23, 2018)).
The Supreme Court also has said that actionable retaliation includes changing the work schedule of a parent who has caretaking responsibilities for school-age children and excluding an employee from a weekly training lunch that contributes to professional advancement, the guidance notes.
By contrast, a petty slight, minor annoyance, trivial punishment or any other action that is not likely to dissuade an employee from engaging in protected activity is not "materially adverse." For example, courts have concluded that temporarily transferring an employee from an office to a cubicle was not a materially adverse action. Similarly, the 3rd Circuit in April rejected an employee's gender discrimination claim, finding that the worker's denied request to take a software training course wasn't an adverse employment action (Ford v. County of Hudson, No. 17-1805 (3rd Cir. April 5, 2018)).