Many state and federal laws prohibit an employer from retaliating against an employee for filing a complaint or for participating as a witness in a complaint against the employer.

Examples of retaliation prohibitions may be found in Massachusetts antidiscrimination laws (MGL c. 151B), the Massachusetts wage-and-hour laws (MGL c. 149 §148A, MGL C. 151), the federal Civil Rights Act and federal Fair Labor Standards Act. While many laws prohibit retaliation, it is often a difficult question to determine whether the actions of the employer rise to the level of retaliation.

A recently reported Massachusetts Commission against Discrimination (MCAD) decision sheds some light on what retaliation looks like.

The case began when an employee filed an internal complaint claiming (a) sexual harassment, (b) retaliation, (c) a violation of the Massachusetts Parental Leave Act, (d) disability discrimination, including failure to provide a reasonable accommodation, (e) sex discrimination, and (f) pregnancy discrimination.

At the time she filed the complaint, the employee was working in the company’s human resources department in the Springfield office. Within a few months of her filing the complaint, the president of the company notified the employee on a Friday that she was going to be transferred to the newly acquired Worcester office effective the following Monday, allegedly to help hire staff for the Worcester office. According to the ruling by the MCAD, “The transfer to Worcester was an adverse action for several reasons:

• the employee was given no work to do in the Worcester office,
• had no access to the office equipment or personnel files necessary to do her job and
• sat at the front desk ‘waiting for the hours to go by.’

The decision summarizes the employer’s actions as a banishment to a non-job with a significantly increased commute time (an increase from 8 minutes to 45 minutes per trip) when she was pregnant.

The MCAD Hearing Officer further found the employer’s actions were retaliatory because the employee was not informed why she was being transferred, or for how long her relocation to the Worcester office would continue. At the time of the transfer, the employee was the only employee in the Springfield office selected for transfer, was given no work to do, and it appeared that the transfer was ordered simply to remove her from the Springfield office.

The Hearing Officer’s decision also highlighted the fact that the transfer was ordered only a few months after the employee’s internal complaint was filed, supporting the retaliation claim with ‘temporal proximity.’

Other counts

The Hearing Officer determined that the employee was a disabled employee under the Massachusetts antidiscrimination law. The employee developed a disability (depression and anxiety) following the birth of her child. Her disability status prompted her to seek accommodation in the form of an extension of leave under the Parental Leave Act. Her request meant that the company was on notice of the employee’s disability status but failed to engage in the interactive dialogue process to determine if they could make reasonable accommodation for the employee.

Instead of engaging in the interactive dialogue and producing evidence of undue hardship, if warranted, the company offered no explanation for why it refused the requested accommodation. Rather, the employer terminated the employee’s employment in early 2017.

Consequences

The employer was ordered to pay lost wages in the amount of $132,560, plus $30,000 in emotional distress damages.

Cases such as this illustrate the legal and financial consequences of an employer failing to follow the necessary steps to minimize or avoid the risk of a retaliation charge. Hindsight shows the company’s missteps: transferring the one employee who filed a complaint against the company within months of filing a complaint; banishing her to a job distant from the current one with no work to do for no justifiable reason; and  failing to engage in the necessary requirements of the law such as interactive dialogue.

Employers need to ensure that their supervisors and managers are well trained on how to comply with employment laws to avoid allegations of retaliation. Failure to do so exposes the company to consequences such as in this case.

AIM members interested in discussing this or any other human resources issue may contact the AIM Employer Hotline at 1-800-470-6277.