Here’s a warning on discharge timing: If you happen to make the final termination decision right after the employee files an EEOC charge, timing alone may be enough to send the case to trial.
Then you will have to persuade a jury or a judge that you had solid reasons for terminating the employee when you did and that retaliation wasn’t a motivating factor.
Recent case: Judith worked as a city health director for several years. She got involved in a messy personal relationship, developed a drinking problem and wound up seeking treatment after a drunken driving arrest. Then she was arrested after a domestic argument with her boyfriend. The charges were eventually dropped after she sought more treatment.
Meanwhile, the city became concerned that as health director, she wasn’t representing the city very well given her personal problems. Over several months, the city negotiated with Judith and her attorney, who alleged that male employees with similar problems were treated more favorably.
Eventually, the city offered Judith a demotion in exchange for agreeing not to sue. Her attorney filed an EEOC complaint while Judith was considering the offer. She rejected the terms—and three days after the EEOC complaint was filed, the city terminated her.
She sued for retaliation, reasoning that the city retaliated against her by firing her after it knew she was going to sue.
The court said a jury or judge should decide whether that was the case or whether the timing was merely coincidental. (Maloney v. City of Bethlehem, No. 13-7664, ED PA, 2014)
Final note: Timing is everything when it comes to. In this case, the employer may have waited too long, giving the employee a chance to create confusion by timing the EEOC complaint for maximum impact.