Employees who threaten to file EEOC discrimination or harassment complaints ordinarily would have a retaliation claim if they were fired for doing so. Close timing between complaint and termination can certainly look suspicious.
But don’t despair if you need to fire the worker for reasons unrelated to her EEOC complaint. If your documentation is thorough and it is obvious the motivating factor wasn’t just her complaint, chances are she won’t win a retaliation lawsuit.
The key is proving that you would not tolerate anyone exhibiting the behavior that ultimately cost the worker her job.
Recent case: Denise had difficulty getting along with co-workers and her supervisor. She had been previously disciplined for not following a supervisor’s work directions.
She claimed a co-worker sexually harassed her by walking close to her while he had an erection; she also accused him of other behavior that isn’t acceptable in the workplace. However, a court eventually determined that his behavior, though highly inappropriate, didn’t quite reach the level of creating a sexually hostile work environment.
Denise told her supervisors that she planned to file an EEOC complaint about the alleged sexual harassment.
After she said she was going to file the complaint, she was terminated.
She sued, alleging not just sexual harassment, but also retaliation. Essentially, she claimed that she had been fired because she threatened to file the EEOC complaint.
But the employer said that even if her threat was a partial reason for its termination decision, it wasn’t the “but for” discharge reason.
It pointed out that the termination memo it gave to Denise outlined an incident that was essentially the final straw. Video surveillance showed Denise running after her supervisor, rushing to get on an elevator with her. In the elevator, the supervisor shook her finger at Denise and Denise reacted by grabbing the supervisor’s arm and twisting it while calling the supervisor “a god-damned f***ing liar.” That behavior, the employer argued, violated its rules against workplace violence and threats.
The court agreed that the employer had a good, nonretaliatory reason for firing Denise. It tossed out her lawsuit. (Blomker v. Jewell, No. 15-1787, 8th Cir., 2016)
Final note: Employers win lawsuits when they stick to the facts and carefully document employee misconduct and poor work. While having a disruptive employee on board may make some supervisors angry and prone to over-reaction, it’s HR’s job to make sure that all discipline is done by the book.
Don’t let managers’ frustration lead to unforced errors. When training and counseling supervisors, explain that they must document everything, spelling out which rules the employee violated. Have them include specific examples of insubordination and other wrongdoing.
In addition, make sure you can differentiate between discipline if an employee outside the target employee’s protected class received a lesser penalty for a similar violation.
In this case, the protected class was employees who have threatened to file an EEOC complaint. Other than Denise, no one who had not made that threat but who did have a past history of insubordination and loudly confronting their supervisor had not been fired.
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