Some employees assume that complaining about harassment or discrimination will protect them from being disciplined. They may have heard or read that the fear of a retaliation lawsuit will make employers so gun-shy that they won’t crack down on misbehavior.
Don’t let employees handcuff you like that. You can discipline workers who have complained—if you have legitimate reasons unrelated to their complaints.
Recent case: Over the years, Ken filed formal complaints that some of his telemarketing co-workers were crude, rude and vulgar. For example, he said one man dressed up as a porn star, complete with open shirt and gold chains, and posed with his hand over his crotch.
Ken was terminated after exhibiting increasingly bizarre behavior. For example, he yelled at a co-worker whenever she sneezed, claiming it made his lungs sting. He began stuffing his nose with toilet paper. Finally, he got into an argument with the woman, approaching her with a can of Lysol and threatening to spray her if she continued sneezing.
His behavior was accompanied by falling productivity, which was also cited as a discharge reason.
Ken sued, alleging retaliation for reporting sexual harassment.
The court tossed out his case. First, it noted that while dressing like a porn star was immature, it wasn’t sexual harassment. Second, the company had plenty to back up its termination decision, including increasingly bizarre behavior and deteriorating work performance. (Fernandez v. Budget Exteriors, No. 10-4690, DC MN, 2012)
- Always assume termination will be challenged
- Don't expect those on FMLA leave to 'stay home and shut the blinds'
- Employee has routine gripe about timekeeping? That's not necessarily protected activity
- WIU settles with coach who was fired after cancer diagnosis
- It takes more than protected status to win lawsuit