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Check records before and after harassment claim

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in Discrimination and Harassment,Human Resources

Here’s a tip that could save you thousands in legal bills and penalties: When you are asked to terminate a poor performer who previously complained about harassment, make sure her performance problems didn’t suddenly emerge after the complaint. That could be a clear indication of retaliation.

Recent case: Renee was hired to sell electronic trading services to in­­sti­­tu­­tional clients, based in part on her prior dealings with several customers whose business the employer wanted.

Almost immediately, Renee noted what she claimed was a sexually hostile work environment. Her supervisor asked her several times to have sex with him. Co-workers and the supervisor watched pornography on their company computers. Women generally were objectified and treated as sex objects.

Renee complained several times: first directly to her supervisor, telling him she thought his behavior was inappropriate and harassing, and later by going to HR. There, she claims, she was told that if she kept complaining she might get fired.

After Renee complained to HR, her supervisor reviewed her work and found it subpar. He ­persuaded management to fire her.

Renee sued, alleging she had been forced to work in a hostile work environment.

The company argued that Renee was simply a poor performer whose sales promise never materialized. The lower court tossed out her case, concluding she was fired for poor performance.

But the 2nd Circuit Court of Appeals concluded differently. It reviewed the sequence of events and noted that no one mentioned poor performance until after she had complained. That was enough to send the case to trial. It was a sign that performance might not be the real reason she was terminated. (Mihalik v. Credit Agricore, No. 11-3361, 2nd Cir., 2013)

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