This one company I’m going to tell you about today allegedly acted so egregiously that it drew the attention of (and a lawsuit from) the U.S. Equal Employment Opportunity Commission.
Imagine that someone comes to HR one day and complaints about sex discrimination. Do you?
- Reassure the complainant that the company will take the complaint seriously; or
- Fire her the next day.
The EEOC announced recently that a Midwest company chose option number 2. And now the EEOC is suing!
According to the EEOC’s lawsuit, the sales representative made a written complaint to [the company’s] human resources department alleging that her manager was discriminating against her because of her sex after he reassigned her clients to a male salesperson. She also said the employer was creating a very hostile work environment for her. [The company] fired the sales representative less than one day later, the EEOC said, in retaliation for opposing what she believed to be unlawful discrimination.
A manager may not fire, demote, harass or otherwise retaliate against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination based on sex.
Proving retaliation requires three elements: (1) a protected activity (described in the preceding paragraph), (2) an adverse employment action (like a termination), and (3) a “causal connection” between one and two.
So, just because someone complains about discrimination at work doesn’t make them bulletproof. Most of us reading this post have dealt with a situation in which the company later terminated a complainant for reasons unrelated to their complaint.
That’s totally legal.
But, usually, the termination happens weeks, months, or years after the complaint — when the timing isn’t suggestive of retaliation. And suggestive timing alone will never support a viable retaliation claim.
By firing someone the day after they complain, the timing is so unduly suggestive as a matter of law that most courts won’t overlook it. Consequently, even if you have unrelated reasons for terminating the complainant, the jury (not a judge) will be the ones to decide if your reasons are valid or just a pretext for retaliation.
Hey, before you go, don’t forget to register (here) for the return of The Employer Handbook Zoom Happy Hour: “Offboarding the C-Suite” on Friday, September 30, 2022 at Noon ET. It’s totally FREE!
We will explore workplace investigations of executive wrongdoing, terminations, and resignations. We’ll also discuss common drafting errors in C-Suite employment and separation agreements, enforcing post-employment obligations, and communicating the change to your workforce.
My guest will be Bob Ellerbrock, who focuses his practice on executive compensation, employee benefits, and ERISA.
Click here to register.