Sometimes employees who know they are in trouble at work will try to set up lawsuits. That way, they reason, if they get fired, they can sue for “retaliation.”
They may, for example, make sexual harassment complaints that turn out to be unfounded or simply not serious. A look, a comment or some other imagined slight, in the employee’s mind, becomes the base for a sexual harassment complaint—and maybe later, for a retaliation charge.
It’s up to HR to ferret out such sneaky tricks and prevent those lawsuits. The best way is to make absolutely sure that you can justify any eventual discipline, such as termination or suspension, under an existing legitimate and evenly enforced rule. Then, make sure no one ties the discipline to the earlier complaint. And take your time before acting. The longer the lag between the complaint and the discipline, the less likely a court will see the move as retaliation.
Recent case: Cecilia Thomas had attendance problems and knew she might face discipline under her employer’s no-fault attendance policy. That’s when she toldthat she thought her supervisor’s communication was “sexually nasty” and said he had twice used a sexually charged phrase. The company investigated and concluded her claims, even if true, didn’t amount to sexual harassment.
Three months later, the company fired Thomas for too many absences. She sued, alleging retaliation.
But the 11th Circuit Court of Appeals tossed out the case. It said that there was too long of a gap between the complaint and the discharge for the two to be related. The case could have gone forward only if Thomas could have connected the two events with some evidence that showed the firing was motivated by the complaint. (Thomas v. Cooper Lighting, No. 07-10233, 11th Cir., 2007)
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