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Unless an employee has a poor performance history, don’t fire him a few days after he reports harassment.

Recent case: Howard Harris worked for a construction firm at various locations under different supervisors. He had no disciplinary or performance problems.

Then he claimed that one foreman sexually harassed him, suggesting the two have sex. Harris complained. Following an investigation, the foreman admitted discussing sex, but denied trying to seduce Harris.

But he also told management that Harris was a poor performer. Other supervisors agreed. On the day that the company announced there had been no harassment, it fired Harris for poor performance.

He sued and the court said the case should go to trial based on the sudden “discovery” of performance problems after the harassment complaint. (Harris v. Railroad Construction, No. 09-1206, DC NJ, 2010)

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