Before terminating an employee who has recently filed a discrimination claim, consider whether the timing may provoke a retaliation lawsuit. Generally, the closer in time to the complaint a termination occurs, the more likely a court will order a jury trial.
You may still terminate the employee—if you’re sure that’s appropriate. For example, it may be worth the risk if the employee who is about to be terminated has done something that’s obviously unacceptable.
Note also that some employees may file discrimination claims simply because they are facing legitimate disciplinary action. They think it will stop the process, even though it shouldn’t.
However, employers should realize that firing the employee presents a risk—perhaps one worth the cost.
Recent case: Patricia Waiters worked for a correctional center, as did her mother. Both filed race- and ancestry-discrimination claims. Waiters was suspended shortly after her mother complained. Then she was fired a few months after she filed her own complaint.
She sued, adding retaliation to her previous claims.
The court tossed out the underlying discrimination claims because Waiters had no evidence that race played any role in the disciplinary actions her employer took.
On the other hand, the court didn’t dismiss her retaliation lawsuit. It said the case could go forward based on timing alone. A jury will now decide whether Waiters was fired for a legitimate reason or because she filed a discrimination complaint. (Waiters v. Hudson County Correctional Center, No. 07-421, DC NJ, 2010)