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.
- Be prepared to defend retaliation lawsuit if fired worker had ever complained to HR
- If employee has authority to hire and fire, is he automatically eligible for exempt classification?
- Count on being sued if you fire employee who has complained about harassment
- Document all disciplinary actions, including why and when you decided to act
- EEOC sues Ricoh for national-origin harassment