Retaliation against employee means different actions
Published 09/09/05

Retaliating against an employee for filing a discrimination charge by changing her job may be unlawful even if her pay and duties don't change.

This point is illustrated in the Chrissie Washington v. Illinois Dept. of Revenue decision of August 22, 2005 by the 7 th Circuit Federal Court of Appeals. In that case, Washington, between 1984 and 2000, worked from 7:00 a.m. until 3:00 p.m. instead of the standard 9:00 a.m. to 5:00 p.m. at the Illinois Department of Revenue. The earlier hours allowed her to care for her son, who has Down syndrome, when he arrived home.

By 1995, Washington had been promoted to Executive Secretary I. Over the next few years, some of her duties were reassigned to others.   Believing that this was done as a result of racial discrimination, Washington filed a formal charge with government officials in June 1999.  She maintains that her supervisor rescinded the flexible schedule upon which her son depended.  The senior manager demanded that she work from 9:00 a.m. to 5:00 p.m., and when she refused, her position was abolished.

She was assigned to another Executive Secretary I post with a different supervisor and required to apply anew for a flex-time schedule.  When that accommodation was refused, she took vacation or sick leave each day from 3:00 PM to 5:00 PM until those benefits were exhausted. In August, 2000, she took an unpaid leave of absence which lasted until January, 2001, when she returned to work for a supervisor who allowed her to work a 7:00 AM to 3:00 p.m. schedule.  Washington contends that her employer returned her to a 9:00 a.m. to 5:00 p.m. schedule in retaliation for an earlier charge of discrimination. The Court had to determine whether or not such a claim could be made when, for discrimination cases, there has to be a tangible employment action, which means lower pay or another significant change in employment status, such as f iring, failing to promote, reassignment with significantly different responsibilities, or decision causing a significant change in benefits.

The Court noted that the law focuses on the materiality requirement of the retaliatory act and therefore the facts surrounding the act are important. As an example, the Court proffered the hypothetical of an employee's charge of discrimination in order to obtain a $10,000.00 annual raise. Moving that employee, in response, from a 100 square foot cubicle to 70-square-foot cubicle would not be a material change in the condition of employment, because petty bureaucratic nastiness does not dissuade a reasonable person from seeking a substantial increase in income.

However, if instead of seeking money for himself, the employee supported a colleague's charge of discrimination, this sort of retaliatory response might induce the employee to withhold support; it would take less to deter an altruistic act than to deter a self interested one.

In summary, the Court noted that if an employer's action is not material, it would not dissuade a reasonable person from making or supporting a charge of discrimination. In large, a reassignment that does not affect pay or promotion opportunities lacks this potential to dissuade and thus is not actionable.

However, in this case, Washington was assigned to a new position rather than a new supervisor so that she would have to reapply for flex time. Her approval she had received in 1984 covered only her old position. The department insisted that she work a normal 9:00 a.m. to 5:00  p.m. shift in her new job. While this would not be materially adverse for a normal employee, Washington was not a normal employee. Her argument was that her employer knew this. She had a vulnerability: her son's medical condition. Working 9:00 a.m. to 5:00 p.m. was a materially adverse change for her, even though it would not have been for 99% of the staff. The practical effect is that the change cut her wages by 25% because it induced her to use leave for two hours per day. Her salary remained the same but her vacation and sick leave drained away. When her leave ran out, her pay fell to zero for five months, until she found a supervisor willing to let her go at 3:00 p.m.  The Court therefore found these were genuine issues of fact that a jury could find supported Washington's contention that the Department set out to exploit a known vulnerability of her, and did so in a way that caused her significant and hence actionable loss, for which she was entitled to a monetary judgment.

While this case is not legal precedent for New Hampshire employers, its reasoning may be used by the New Hampshire Federal Court, particularly since that Court applied a fairly common sense approach, which holds hat if an employer knowingly exploits a vulnerability of a employee in retaliation for that employee reporting what she perceived as a discriminatory act, the employee should have the right to damages against the employer for unlawful retaliation. This is so even if the employer could show that for the vast majority of its employees such an action taken against the employee would not have been a big deal.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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