Adverse Employment Action Claim of Employer Retaliation Due to Racial Discrimination Denied
California law allows employees whose employment has been adversely affected due to a racial (or any) discrimination complaint to file a claim for unlawful employer retaliation. If they can convince a jury that the termination was retaliation for making the discrimination complaint, they can be awarded damages.
(PRWEB) May 14, 2005 -- As we all know, it is illegal for an employer to retaliate against an employee who makes a discrimination complaint by adversely affecting their employment. Clear cases of this arise when an employee makes a claim of harassment and is terminated soon thereafter on questionable grounds. California law allows employees in that situation to file a claim for unlawful employer retaliation. If they can convince a jury that the termination was retaliation for making the racial discrimination complaint, they can be awarded damages.
Dr. Mc Rae is an African American surgeon who worked for the Department of Corrections. She applied for a position as a Chief Medical Officer, but the job was given to another employee. She filed a discrimination claim against her employer, alleging she was passed over due to her race. Later, she was transferred to a new job location. She filed a new action claiming the transfer, in addition to other actions of the Dept. was in retaliation for her racial discrimination claim.
In the case of Mc Rae v, Department of Corrections (case cite is 127 Cal.App.4th 779 (2005)), the Court of Appeal gives guidance on what should be deemed an adverse employment action" sufficient to state a claim for employer retaliation. The McRae court held that for purposes of a retaliation suit under the Fair Employment and Housing Act, what is required is an adverse employment action that causes substantial and tangible harm, such as, but not limited to, a material change in the terms and conditions of employment. They held that transfer of physician from one facility to another was not an adverse employment action where it did not entail a demotion, a reduction in pay or a loss of benefits; did not involve a change in status, a less distinguished title, a significant change in job responsibilities, work hours or commute time. To state a claim, the Court held that the employee would have to establish that the change was not just somewhat less pleasant, but had materially adverse consequences comparable in significance to a demotion, a decrease in wages or benefits, or a less distinguished title.
While no one should read the case as a green light to transfer an employee that is perceived to be difficult to a less desirable position, it does give some balance to the difficult situation of administering normal and usual employment decisions to those who have made racial discrimination and other discrimination claims. Certainly, there are situations were a transfer can be a basis for a claim, for instance, transferring someone to a distant location where the responsibilities would be far less and there is no real potential for advancement. The key here is to be sure the action does not affect the employee in a manner viewed as an adverse employment action.
For more information or to find out how this pertains to your business, please visit http://www.baconlaw.com or call 714.257.2100 and ask for Ted Bacon.
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