Retaliatory Discharge: How Much Are You Exposed? Q&A

Q:       We have supervisor who is recommending the termination of an employee who recently complained she was being harassed by a coworker. The supervisor says her performance has declined over the last few weeks and that she has been tardy several times. We resolved the harassment complaint, but should we be concerned that she may sue us for retaliation if we fire her so soon after the complaint?


A:         Absolutely. Retaliation claims continue to top the complaints filed with the Equal Employment Opportunity Commission (EEOC) for the sixth year in a row and have steadily risen over the last 11 years, even though the overall number of EEOC claims has declined. The EEOC’s most recent report indicates that employees filed almost 89,000 claims against employers in Fiscal Year (FY) 2014, and among those, retaliation claims were once again the most popular. (The EEOC is the federal agency responsible for enforcing employment discrimination laws including Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), and the Genetic Information Nondiscrimination Act (GINA).) For FY 2014, retaliation claims accounted for 42.8% (37,955) of the claims filed, followed by race discrimination claims at 35% (31,073).


An interesting feature of retaliation claims is that they often are filed as part of a larger discrimination case. Employees who bring good faith discrimination claims are shielded from retaliation even if their complaint is ultimately determined to be meritless. As a result, employees include retaliation claims as part of their underlying discrimination complaints and often succeed with these claims even when their discrimination charges are dismissed


For example, in Thomas v. iStar Fin., Inc., 629 F.3d 276 (2nd Cir. 2010), the court upheld the dismissal of the employee’s hostile work environment claim but permitted the retaliation claim to proceed because

the employer allowed a manager, whom the employee had complained about and who harbored retaliatory and racially hostile feelings toward the employee, to participate in the decision to discharge the employee. Similarly, in Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840 (7th Cir. 2007), a nine-year employee who could not prove race and national origin discrimination was allowed to go forward with his retaliation claim. He was fired just days after he filed an EEOC discrimination charge and

had never received any performance warnings until he complained to his supervisors about discrimination.


And, in 2013, the EEOC won a $675,000 victory in federal court against RadioShack for an employee who claimed age discrimination and retaliation. The employee’s age discrimination claims were dismissed,

but the retaliation claims resulted in the large verdict. The fact that the employer fired the employee just three days after he complained of age discrimination supported the retaliation finding.


One significant factor in all three of these cases was the timing of the employees’ firings in relationship to their complaints, often just days after a complaint was made. Accordingly, you could have a retaliation claim against your organization simply because the timing of the termination comes directly after her complaint, even though her complaint was resolved.


Therefore, to limit your exposure to a retaliation complaint in this situation, you should consider the following four steps before terminating the employee:


  1. Make sure that employee’s supervisor followed your discipline and termination procedures consistently. The supervisor should be required to consider his motives before taking adverse action against the employee and should be able to show he is treating her fairly and consistently. He clearly must not target, or appear to target, the employee for making the harassment complaint or participating in a protected activity.


  1. Document discipline and termination decisions to show the nondiscriminatory reasons for the action. You should provide an accurate accounting of the facts behind the decision and any steps taken prior to the action (such as counseling sessions and warnings to improve). These records can be a critical defense if you have to justify your actions externally or defend a lawsuit.


  1. Review the termination decision before implementing it. The termination recommendation should be reviewed before finalization by the HR department or someone at least one level of management above the immediate supervisor. In addition, you should discuss the termination with your legal counsel before making the final decision.


  1. Implement and enforce clear “no retaliation” policies so that managers and coworkers understand the seriousness of the issue. For example, harassment, equal employment opportunity, and complaint policies should state plainly that you prohibit retaliation against employees who make complaints or provide information about discrimination or other protected activity. In addition, managers should be trained to know what actions can be interpreted as retaliatory.


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