Transfer to ‘Feared’ Position May Support Retaliation Claim

An employer may be liable for retaliation under Title VII of the 1964 Civil Rights Act for transferring an employee, following her sexual harassment complaints, to a position she could not perform.

Christine DiIenno, who priced donated clothing for Goodwill Industries, was sexually harassed by her manager for two years. After DiIenno reported the harassment to Goodwill, she was transferred to a job processing and sorting clothing, with the same pay and benefits as her pricing job. Despite a doctor’s note documenting her phobia of “critters”—e.g. mice and insects—DiIenno was forced to process clothing which was infested with vermin. After breaking down, she took medical leave and sued alleging retaliation.

On appeal, the U.S. Court of Appeals for the Third Circuit allowed DiIenno to proceed with her claim, holding that transfer to a job an employer knows an employee cannot do may constitute adverse employment action. DiIenno vs. Goodwill Industries of Mid-Eastern Pennsylvania, 3^rd Cir., No. 98-1024, 11/27/98.

Impact:
Employers may not disguise retaliation, such as knowingly transferring an employee to a job that employee is unable to perform.

Source: D. Diane Hatch, Ph.D., a human resources consultant based in San Francisco, and James E. Hall, an attorney with the law firm of Barlow, Kobata & Denis, with offices in Los Angeles and Chicago.