Job Reassignment Can Be Considered Retaliation
As the Supreme Court recently pointed out, one good way to discourage an employee from bringing discrimination charges would be to insist that he spend more time performing the more arduous duties and less time performing those tasks that are easier or more agreeable. This is persumable why the EEOC has consistently found “retaliatory work assignments” to be a classic and “widely recognized” exmaple of “forbidden retaliation”. 2 EEOC 1991 Manual section 614.7, pp. 614-31 to 614-32. See also 1972 Refrence Manual section 495.2 , noting the decision by EEOC involving an employer’s ordering an employee to “do an unpleasant work assignment in retaliation” for filing a racial discrimination complaint.
Of course, reassignment of job duties is not automatically actionable as retaliation, and it depends on the circumstances of a particular case, and should be judged from the perspective of a reasonable person in the aggrieved employee’s position.
In one recent interesting retaliation case – Burlington Northern & Santa Fe Railway Co. v White (2006), the US supreme court noted that a 37 day suspension of a worker was actionable as retaliation, even though the employee was reinstatement with full backpay. This is because, the court stated, living 37 days without pay while needing to support your family and not knowing, whether you will return to work and when was more than sufficiently adverse employment action, which is not fully compensated by backpay alone.