It’s a dilemma faced by many HR professionals: Discipline an employee who has engaged in a “protected activity” (like union organizing), and you risk a retaliation lawsuit. But if you forgo the discipline, you may be triggering another discrimination lawsuit and you could end up in court anyway.
The best advice: Weigh the risks and follow your instincts. The key to action is thinking ahead and reviewing your employment policies so you won’t have to struggle for the right reason to take action. It may even help to role-play different scenarios, such as what to do if an employee makes racially derogatory comments or sexually harasses a co-worker.
In the following case, the employer had to decide between a lawsuit citing retaliation for union support and a claim of a racially hostile work environment. It chose retaliation and won.
Case in point: Alonso Barrera, an outspoken union supporter, worked for Worldwide Flight Services until he was fired for painting the letters “KKK” on a company workbench. An arbitrator reinstated him with the proviso that he not violate the company’s racial harassment policy again.
Worldwide then fired Barrera for uttering a racial epithet at a black co-worker. He sued, claiming Worldwide fired him in retaliation for union support. The trial court granted summary judgment for Worldwide. Barrera appealed, but the 5th Circuit tossed out the case. The court reasoned that Worldwide had a legitimate reason for terminating him, namely to protect other employees from a racially hostile work environment. (Barrera v. Worldwide Flight Services, Inc., No. 06-20539, 5th Cir., 2007)
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