Document solid reasons for firing complainer

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in Discrimination and Harassment,Firing,Human Resources

Employees who complain can be annoying, especially if you believe their gripes don’t have merit. But firing such an employee can be dangerous because complaining about discrimination or other legal issues is protected activity that can’t be punished.

That’s true even if it turns out the employee’s complaint wasn’t valid, as long as it was made in good faith.

Before you terminate an employee who has engaged in protected activity, make sure your reasons are solid and can survive scrutiny in court.

Recent case: Mary worked as a technical writer and got frequent opportunities to take on extra assignments and management tasks outside her job description. Her supervisor believed she deserved more pay and a promotion and even went as far as to recommend the creation of a new position for her. However, that never materialized.

Mary watched her employer hire men for other positions she wanted and began complaining that she was losing out on opportunities because she didn’t “have a penis.” Shortly after she made that comment (and after receiving a positive performance review), she was told she was being let go to save money.

Mary sued, alleging sex discrimination in promotion, as well as retaliation for complaining.

She lost her discrimination claims, but the court said her retaliation claim could proceed. It reasoned that a jury might perceive her sudden termination despite good reviews as punishment for complaining. That was especially true since she was the only employee terminated, and a man soon took over her old job. (Frintner v. Trueposition, No. 11-3454, ED PA, 2012)

Final note: If you plan to use financial reasons to justify a termination, back it up. Show solid business reasons, such as falling earnings, higher overhead or a management directive to cut labor costs.

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