Shift change can be retaliation, 5th Cir. says
- A Fort Worth police officer's transfer to the weekend night shift in the traffic division was retaliation for his race complaints, the 5th U.S. Circuit Court of Appeals has ruled (Delbert Johnson v. Jeffrey Halstead, No. 17-10223 (5th Cir. Dec. 14, 2018)).
- Delbert Johnson alleged in court papers that, for three years, he was subjected to isolation, harassment and ridicule because of his race. Investigators hired by the city agreed. The investigators also concluded that, although Johnson had reported the harassment to upper management, the behavior was allowed to continue. Three months after complaining to HR, Johnson was transferred to the traffic department where his work hours changed from 6 a.m. to 2 p.m. Monday through Friday, to 4 p.m. to 2 a.m. Friday through Monday. Johnson described the new assignment as "one of the worst shifts in the entire police department," and said he lost $50,000 because he no longer had the opportunity to work overtime hours and also had to quit another part-time job he had held for 11 years.
- The court said Johnson had plausibly alleged that he was transferred because of his discrimination claim. Additionally he was able to show that the move amounted to an adverse employment action; "the widely acknowledged inferiority of the new shift would have been apparent to any reasonable person making the decision," it said.
The U.S. Equal Employment Opportunity Commission has made it clear that retaliation extends beyond how a decision affects an employee's work. An employer can retaliate against someone by implementing a work-related policy that affects his or her outside life more than it does the workday itself, courts have said.
The Johnson court noted several cases reviewing permissible and impermissible shift changes. A shift change was not an adverse employment action when a work schedule was changed from a four-day week to a five-day week with no change in total hours or compensation (Lushute v. Louisiana, Dept. of Soc. Svcs, 479 F.App'x 553, 555 (5th Cir. 2012)). Potential retaliation occurred when police officers were switched from a permanent shift to a rotating shift because the change severely affected the officers' sleep schedules and made it more difficult for them to work overtime and part-time day jobs (Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008)). And finally, a lateral transfer requiring a 9-to-5 schedule could be materially adverse when prior flex-time hours were necessary for plaintiff to care for her son with Down syndrome (Washington v. Ill. Dep't. of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)).
Anti-discrimination and anti-bias training for managers and front-line supervisors can go a long way toward preventing discrimination complaints. Robin Shea, partner at Constangy Brooks, Smith & Prophete, previously told HR Dive she recommends that employers hold harassment training once a year, with separate sessions for employees and managers. Employees need to know how to recognize harassment, how to complain about it and that they can do so without fear of retaliation. Managers need to know all that, Shea said, and what to do when a harassment complaint comes in.
- U.S. Equal Employment Opportunity Commission EEOC Enforcement Guidance on Retaliation and Related Issues
- HR Dive Reduced overtime can be retalation, 4th Cir. says
- HR Dive Professors transfer may have been retaliation for harassment claims, 1st Cir.