Picture this scenario: Employee A brings a sexual harassment claim against Company. Employee B, who is friendly with Employee A believes the Company has taken adverse actions against her because of her friendship with Employee A, such as transferring her to a different location where she was denied her own office for six months and was directed to perform tasks she was not required to do. For these and other reasons, Employee B asserts that her job performance suffered due to these alleged retaliatory actions. She sued under Title VII of the Civil Rights Act of 1964 and the employer moved to dismiss. The dismissal motion was denied.
When employers think about retaliation claims, they usually anticipate them from the worker who reported (or filed a claim alleging) harassment or discrimination. However, according to the U.S. Supreme Court, retaliation claims also can be brought by those associated with a claimant – like Employee B. To establish a prima facie retaliation claim, a claimant must show (1) that she engaged in a protected activity; (2) that the employer took a materially adverse employment action against her; and, (3) that a causal connection exists between her protected activity and the adverse action. In this instance, the trial court found that the co-worker’s claim established, at the pleading stage, that she engaged in protected activity by being “associated with a co-worker who indeed did complain of sexual harassment.” The Court also found that the employer’s action taken after her transfer were sufficient at this early stage to allege an adverse employment action.
Employers should be careful not only to avoid taking adverse action against those who bring claims, but also co-workers who may be affected by association. Further, employers should also be aware that even a transfer can rise to the level of adverse action in some cases.