Employees are protected from retaliation for complaining about alleged discrimination. The complaint is considered protected activity. Something as simple as calling a supervisor to complain about a co-worker’s racial slur is protected.
Recent case: Everett, who is black, got a job as a part-time dietary aide at an assisted living facility. Soon, his boss was reprimanding him for speaking to nursing staff while they were trying to dispense medication and for not showing up when scheduled.
After the last reprimand, Everett called his supervisor to report that a co-worker had used a racial slur. Within an hour, Everett was fired.
He sued, alleging that he had engaged in protected activity and had been fired in retaliation for doing so.
The court agreed that the casual complaint was protected activity.
Luckily for the employer, the court also agreed that the employer had a legitimate reason to fire Everett despite the short gap between the complaint and the termination. It helped that the employer had clear documentation showing that Everett had been disciplined earlier and that his termination was already in the works before he complained about the racial slur. (Michael v. Golden Living, No. 12-CV-0314, MD PA, 2013)
Final note: Always keep careful disciplinary records. You need to be able to show when the employee broke a rule, how he was disciplined (oral reprimand, written reprimand, etc.) and whenmade a final decision to terminate. That prevents a last-minute complaint from derailing legitimate discipline.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Audit firings to guard against bias suits
- HR CSI: Conducting a post-mortem of a legal claim
- Protect against bias allegations: Involve hiring manager in any termination decision
- Use exit interviews to identify patterns of supervisor's hidden discrimination