Don’t let down your guard just because an employee’s discrimination complaint lacks merit. He could still have a legitimate retaliation claim.
Simply put, if a supervisor punishes an employee after he complains about discrimination, you can still be found liable even if there was no discrimination in the first place.
Timing is crucial. A knee-jerk decision to fire someone who has filed a bias complaint will backfire unless you can clearly and convincingly show that you were already contemplating the move—and that it had nothing to do with the complaint.
The best approach: Investigate the complaint. Don’t discipline until you know all the facts. You must make sure the discipline is both warranted and unrelated to the complaint.
Recent case: Cumberland County employee Alvin Bess thought his boss treated him unfairly because he is black and speaks with a stutter. He complained that he had been wrongly excluded from participating in an important project. The next day, Bess’ boss fired him, telling him that he was mentally ill.
Bess sued, alleging discrimination and retaliation.
The court tossed out the discrimination claim, but said Bess’ retaliation case could go to trial based on timing alone. (Bess v. County of Cumberland, No. 5:11-CV-388, ED NC, 2011)
Final note: Cumberland County will still be able to argue that the termination was legitimate. However, the jury could side with Bess anyway. Had the county waited to discharge Bess until after investigating the underlying claim, the case probably would have been dismissed earlier.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Avoid age-bias risk when talking retirement
- Count on being sued if you fire employee who has complained about harassment
- The practice judges never forgive: Retaliation
- Make sure your promotion process gives all qualified candidates enough time to apply