Employees often mistakenly believe that if they complain to HR about discrimination or harassment, they somehow become untouchable. They assume that anything negative that happens shortly after must be retaliation.
That’s simply not the case. If the employee breaks a rule, he’s not immune from the usual and customary punishment.
Recent case: FedEx employee Everett Henderson complained to HR that his supervisor had made sexually oriented comments to another employee. Two weeks later, the same supervisor recommended that Henderson be terminated for falsifying his time records in violation of the company’s policy.
FedEx installed a security camera near the time clock. During a review of the camera’s footage, a co-worker of Henderson’s was observed clocking in for himself and then returning a few minutes later and clocking in again. The camera never captured Henderson himself clocking in that day. However, his time sheet showed him to have clocked in at the same time the co-worker approached the clock the second time.
Henderson sued, arguing he had been terminated in retaliation for complaining to HR about his supervisor’s alleged sexual harassment.
But FedEx argued that it had a completely independent reason for terminating Henderson—that he had conspired with a co-worker to cover up Henderson’s late arrival by clocking in for him.
The court said the time card incident was an intervening reason for termination, cutting off any connection between the protected activity (complaining about sexual harassment) and the adverse action (being terminated.) It tossed out Henderson’s case. (Henderson v. FedEx Express, No. 10-15633, 11th Cir., 2011)
Final note: Of course, employers can’t just throw the book at the complaining employee. The firing offense must be something that would have resulted in termination for any other employee, too.
- Insubordination always a legitimate reason to fire
- Follow up on complaints to ensure mistreatment stops along with harassment
- Lawsuit-proof firing: Those who hire should also fire
- Don't worry a somewhat negative performance review will cost you a lawsuit
- Use business necessity as rationale for pre-Employment exams