Retaliation
In the past, an employer's action against an employee who had engaged in protected activities (that is, complained of discrimination or harassment or took part in an investigation of such a claim) was not considered retaliation unless it resulted in the employee being terminated, demoted or otherwise monetarily impacted by an employment action. However, in June 2006, the U.S. Supreme Court stated that any action against an employee that has the effect of discouraging employees from filing complaints of discrimination constitutes retaliation.
A charge of retaliation, unlike charges of harassment or discrimination, does not necessarily require an adverse effect only on an employee’s employment situation. Other circumstances, outside of the workplace, may be taken into consideration in determining if an employer’s action against an employee who filed a discrimination claim constituted retaliation. The following scenario would illustrate such a situation.
Two employees, one of whom filed a claim of discrimination and another who testified on the first's behalf in the investigation, are reassigned to work at another site several blocks away from their current work location. All the job duties, pay, benefits and working conditions are the same at both sites. One of the employees drives to work and going the extra distance may be slightly less convenient, but not materially adverse, therefore the reassignment would probably not be considered an act of retaliation. The other employee, however, has a medical condition which prevents her from obtaining a driver's license so she takes a bus to work. The alternate location is not on a bus route and therefore requires the employee to walk an additional three quarters of a mile to get to and from work from the nearest bus stop. Under the explanation provided by the Court, this could very well be considered an act of retaliation.