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First Circuit Holds University’s Response To Sex Harassment Is Retaliation

Now more than ever, employers are aware of their obligation to take prompt remedial action in response to complaints of sex harassment.  But what happens when the employer’s attempt to placate a complainant through voluntary transfer results in less favorable work conditions?  Well, now the complainant has a cause of action for retaliation, explained the First Circuit in Carlson v. Univ. of New England, No. 17-1792 (1st Cir. 8/10/18).

In this case, Lara Carlson, a professor at the University of New England, complained that her department chair touched her inappropriately and made unwanted sexually charged comments.  The University agreed the conduct was harassment and took some steps to mitigate the behavior by meeting with the chair, and removing him as Carlson’s chair to oversee her tenure.  But the chair remained Carlson’s supervisor, and the harassment unfortunately continued.

Fed up with the situation, Carlson met with the University to request a change in reporting status.  Carlson was told she “would have to be removed from the department” if she wanted a new supervisor.  Though not ideal, Carlson agreed to the transfer to avoid further harassment, provided she could “keep her classes and continue to do her job.”

Carlson was ultimately transferred, without a loss in pay. However, the change in departments led to a change in Carlson’s teaching assignments, removal from her previous department’s website, and removal as an advisor to students. Carlson sued for retaliation, but the district court denied her claim, finding the “voluntary” transfer could not be an adverse action.

The First Circuit, however, disagreed.  Relying on evidence that Carlson was denied the same teaching conditions she was promised, as well as evidence of the University’s shifting explanations for its actions, the Court found that a jury could conclude Carlson was induced to consent to the transfer under false premises, and infer that the events would not have occurred but for Carlson reporting her chair’s sex harassment.

The take-away for employers here is that when transferring an employee to resolve a complaint of harassment, ensure that the transfer does not result in a disparity in duties so significant that you’ve now potentially created an even bigger problem.

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