Here’s how your company can basically GUARANTEE getting sued and going to trial


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?

  1. Reassure the complainant that the company will take the complaint seriously; or
  2. 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.

“Doing What’s Right – Not Just What’s Legal”
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