70,000 reasons not to fire a witness for participating in a sexual harassment investigation

Witness stand in a courtroom

You wouldn’t fire someone because they complained to you about sexual harassment at work. For starters, that would violate Title VII of the Civil Rights Act of 1964.

But, Title VII’s anti-retaliation provisions are much broader than that.

Title VII prohibits employers from retaliating against an employees who oppose unlawful harassment or participate in an employer’s internal investigation into the underlying complaint.

Just ask an Alabama company that recently settled a retaliation case with the U.S. Equal Employment Opportunity Commission for $70,000. Here are the details from the EEOC’s press release:

Rite Way employed Mekeva Tennort to perform janitorial duties at Biloxi Junior High School. In August 2011, Tennort gave a statement to supervisors investigating a sexual harassment complaint by another employee. The Commission alleged that, soon afterward, Rite Way gave Tennort several written warnings about untrue supposed performance issues, and then fired her based on these unfounded accusations.

“Preserving access to the legal system remains a national priority for the EEOC,” said Delner Franklin-Thomas, director of the EEOC’s Birmingham District Office. “This settlement demonstrates the Commission’s ongoing commitment to protect employees who participate in workplace investigations from illegal retaliation.”

Now, what if, after giving a statement to the company, the witness actually has performance issues? Can you write the witness up? Can you fire the witness? Yes and yes. But, consider the following:

  • Did the performance issues precede the witness statement?
    • Was the witness written up then too?
    • Were those prior performance issues documented in any way?
    • Did you counsel the witnesses?
  • Are you writing up/disciplining other employees for similar performance issues?
  • If you have a progressive discipline (or other similar) policy, are you following it?

If the answer to any of these questions is no, pause and ask yourself why — especially if the decisionmaker is aware of the investigation. (Maybe, you have an out if the decisionmaker isn’t aware that the employee was a witness in a harassment investigation, because that person would lack retaliatory motive).

Otherwise, tread carefully. Remember, retaliation is the number one box checked on an EEOC charge of discrimination.

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