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Employees who complain about harassment or discrimination and then claim they were retaliated against can win their cases on timing alone.

If a termination or demotion (or anything else that might dissuade a reasonable employee from complaining in the first place) occurs shortly after the employee complained, that makes it easy for courts to call it retaliation.

Some employees may even manufacture complaints when they think they’re in trouble at work.

That’s why it’s so important to maintain good records of all work problems, discipline and complaints. Employers that can prove they were raising concerns about performance before the employee complained about discrimination or harassment effectively cut the causal link between the complaint and the alleged retaliation.

Recent case: Laurie Dahl worked for the High-Tech Institute, a post-secondary school, as an admissions representative. In 2008, she received warnings about poor performance on May 28, Aug. 15 and Oct. 2. Her supervisor drafted a recommendation to terminate Dahl on Oct. 7. However, he held off on sending it, and instead opted to work with Dahl to improve her performance.

Two days later, Dahl got into a shoving match with a co-worker. That evening, perhaps realizing she was in trouble, Dahl sent an e-mail to her supervisor claiming that the co-worker had sexually harassed her before the argument and altercation.

Eventually, the school fired both women—Dahl because of her poor performance and the fight. She sued, alleging she had been retaliated against for raising sexual harassment complaints.

The court didn’t buy a connection between her complaint and termination. It pointed out that her first complaint was filed after the altercation and her prior warnings. (Dahl v. High-Tech Institute, No. 09-1658, DC MN, 2010)

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