Discipline is always a sensitive issue, especially if the employee in question has filed previous discrimination complaints or a lawsuit.
Even if the employer won previous battles, the employee may actually view any discipline as another chance to attack the company—with a retaliation lawsuit. It’s one surefire way to revive a dead case.
Here’s the best way to handle further discipline. Make sure you can verify whatever problems the employee is having from more than one source.
For example, if the employee has an attitude problem (quite possible if he lost an earlier lawsuit), get input from as many co-workers as possible to substantiate the behavior. That way, a court is less likely to find retaliation and more likely to agree the problem lies with the employee, not the company.
Recent case: Homi Amirmokri, who is an Iranian national, lost a national-origin discrimination lawsuit against his employer. Amirmokri was a nuclear engineer whose job included visiting various nuclear facilities to help manage the transportation of nuclear materials.
After one visit, word started filtering back that Amirmokri might have developed an attitude problem. One employee reported he treated her very rudely while discussing a safety concern. Another said Amirmokri got angry when he was told to put on a dosimeter, which measures radiation exposure. His supervisor warned him to behave better, but on the next visit Amirmokri allegedly told another employee that he might sue him for libel.
That’s when Amirmokri’s boss issued a reprimand and reassigned him to a position that didn’t require so much interaction with other employees. Amirmokri then sued, alleging retaliation for his earlier lawsuit.
The 4th Circuit Court of Appeals dismissed the lawsuit (as it had earlier dismissed his appeal of the original suit). Because the employer had multiple complaints, and because none seemed to have anything to do with either national origin or retaliation, he had no case. (Amirmokri v. Abraham, No. 06-1690, 2008)
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