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Employers confronted with an employee’s claim of discrimination are often advised to take the “Hippocratic” approach to dealing with the complaining employee: “Do no harm.” That is, if an employee complains of discrimination, all future dealings with the employee should be undertaken so as to avoid a second, and potentially more dangerous, claim of retaliation. This “do no harm” approach is relatively easy for employers when confronted with failure to promote/transfer claims or any other claim where doing nothing, i.e., maintaining status quo, will have no additional adverse effect on the employee. Harassment claims, however, are different. An employer confronted with a claim of harassment, regardless of its basis, is required to make it stop. This will almost always require doing something. Taking the doctor analogy a little further, it is like requiring the employer to operate on the employment relationship while guaranteeing that the employee will be as good as new after surgery. Therefore, when there is a finding of harassment in the workplace, and the harasser keeps his/her job, employers will almost always split up the employees involved by moving/transferring the harasser and barring future contact, thus avoiding a claim of retaliation. VICTIM WAS HARASSED THEN TRANSFERRED In Marrero v. Goya of Puerto Rico, Inc., No., 01-1984 (1st Cir. 2002), the 1st U.S. Circuit Court of Appeals addressed a situation where the employer, Goya, took the risky approach of transferring the victim of harassment, following her complaint of discrimination. The court found that, despite a minor increase in Marrero’s working conditions, her transfer was not retaliatory as a matter of law. Gina Marrero began work at Goya in April of 1995. She worked primarily as a secretary in the Sales Department, supervised mostly by Ramon Cardenas, Goya’s Vice President for Sales. Cardenas sexually harassed Marrero from the time of her hiring through November 1996. Cardenas’ behavior, including vulgar comments, intentionally bumping into Marrero and rubbing his body against hers, caused her to have two nervous breakdowns in the first 16 months of her employment. Cardenas’ behavior culminated in a sexual invitation and direct threat of termination late October 1996. Marrero went on yet another sick leave from Nov. 13 to Nov. 20, 1996. During that time, she filed a charge of sexual harassment with the EEOC against Cardenas and Goya. Upon her return to the workplace, she met with Goya’s vice president of human resources and in-house counsel. After Marrero confirmed that she had filed a charge with the EEOC, she was advised that she would be transferred to work as a secretary in the human resources department. Since this position required her to still be close to Cardenas’ office, she asked why she could not be transferred to an available secretarial position into another building. Goya simply responded that the decision had been made. Furthermore, Marrero was informed that she would have to undergo a probationary period “to see whether [she] could perform her duties.” Incredibly, Cardenas, far from leaving Marrero alone in her new job, taunted her — at one point stating: “you thought I was going to be screwed, but it was you who ended up screwed.” It probably was not surprising that Marrero lasted just a few days in this new position before she resigned, claiming constructive discharge. At trial, a jury found in Marrero’s favor on her claims for sexual harassment, retaliation and constructive discharge and awarded $250,000.00 in compensatory and punitive damages. LATERAL TRANSFER IS NOT RETALIATORY While the 1st Circuit affirmed the verdict in favor of Marrero on her sexual harassment claim, it found there to be no evidence to support her claim of retaliation. The appellate court found that “the clear trend of authority is to hold that a purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” Otherwise, “every trivial personnel action that an irritable employee did not like would form the basis of a discrimination suit.” Even though the court found that Marrero’s new position involved a minor increase in work responsibilities, it found these new responsibilities did not change the fundamental nature of her transfer. Furthermore, it was “not enough that Marrero felt stigmatized and punished by the transfer. A more tangible change in duties or working conditions is needed before we can conclude that the transfer was, in substance, a demotion.” The court found that Marrero had to show that Goya “took something of consequence from her” in order to demonstrate retaliation. This, she had not done. Finally, the court reversed the jury’s finding in favor of Marrero on her claim that after her transfer, she had been subjected to a retaliatory hostile environment by Cardenas. Because Marrero had remained in her position for only three days, even Cardenas’ taunts were found not to create an “objectively hostile” work environment for her. “Something more egregious than rudeness and mockery is needed before we can permit a finding of retaliatory hostile work environment based on intermittent contact over a three-day period.” While Goya escaped liability on Marrero’s retaliation claims, its handling of Marrero’s complaints was certainly less than optimal. The case serves to illustrate, however, the difficulties an employer faces where a senior executive, likely responsible for millions of dollars, is accused of harassing an employee at the bottom of the corporate ladder. Goya was likely faced with the Hobson’s choice of taking action against Cardenas, which may have jeopardized its business plans, or risking an escalation of Marrero’s harassment claim. Whatever the reason, the case serves as a cautionary tale regarding how to handle sexual harassment complaints and the steps employers should take to stop reported harassment.

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