Courts are consistently hesitant to second-guess well-founded employment decisions. Of course, they won’t let you get away with discriminating or retaliating against an employee for filing an EEOC complaint or lawsuit. But that doesn’t mean you can’t discipline an employee if she needs prodding to meet your legitimate expectations.
You can and should discipline everyone who deserves it, whether she’s involved in litigation or not.
Recent case: Raquel worked for the U.S. Department of Justice. On an evaluation, she received a lower ranking than she had on earlier appraisals, which had rated her “outstanding.” Her supervisor said the downgrade was because she made slow progress on a big project. She filed a discrimination complaint.
Two years later, she was suspended for five days. Her supervisor said she was punished for missing work for two days without letting her supervisors know and then refusing to submit medical paperwork when she claimed she had been ill.
Raquel sued, alleging discrimination and retaliation for her earlier complaint.
The court tossed out her case. It reasoned that Raquel’s lower evaluation wasn’t enough to justify a lawsuit, since she hadn’t lost pay, benefits or anything else important. Plus, it was clear that there was a legitimate reason for her downgrade from “outstanding”—she had missed important deadlines.
Finally, the court said too much time had passed for the suspension to be retaliation for her earlier complaint. In addition, the suspension was clearly based on her own misconduct. (Allard v. Holder, No. 11-50481, 5th Cir., 2012)
Final note: As long as you treat all employees alike when it comes to discipline, you have little to fear. The employers that get in trouble are those that target or “throw the book” at employees they’re seeking to get rid of for reasons that aren’t legitimate—or legal.
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