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Sometimes, employees who are having performance problems think that filing discrimination complaints will help protect their jobs.

Word has gotten around that employees can win retaliation cases even if the discrimination claims they make are flimsy. That is, if the employer takes an adverse action (e.g., demotion, transfer, discharge) after the complaint. What better way to protect one’s job, they reason, than to file the complaint and wait for the response?

But employers won’t lose a retaliation case if they can show that the employee really did deserve the discipline that followed the discrimination complaint.

It has to be done correctly, though. Jumping the gun and disciplining the employee for his first mistake can backfire badly—especially if you’ve ignored similar mistakes or problems until now with that employee or others. Your quick-draw discipline will look like retaliation for engaging in a protected activity.

Instead, exercise some patience and wait until you have solid reasons to discipline. Then document those reasons, including giving specific examples of poor performance, broken rules, insubordination and other behavior no employer should have to tolerate.

Just make sure that you aren’t singling out the complainer for special enforcement, but that everyone with similar performance or behavioral issues is treated the same. And get it all in writing.

Recent case: Over the years of his employment with the Department of Homeland Security, Kenneth Lakes filed numerous internal claims alleging race discrimination. Lakes, who is black, supervised canine enforcement officers.

After his initial discrimination complaint, he seemed to think that anytime anyone at the agency turned down his promotion requests or some other benefit, it was because he had filed the complaint. In short, he thought management viewed him as a troublemaker.

Lakes applied for 13 open positions with the agency, but wasn’t selected. He also was rejected for four temporary assignments, plus was once denied a chance to work overtime.

Finally, after several years, Lakes was fired for various rule violations. The discharge notice said he had instructed his subordinates to falsely report that their canine charges had discovered contraband when they had not. He also lied to investigators asking about the false reports.

Perhaps most alarming, management also cited two potential sexual harassment incidents in which Lakes allegedly unzipped his pants and pulled them down to hip level or pulled at his belt with both hands and told those watching that he had something he wanted to show them.

Lakes sued, alleging retaliation. But the court said he had nothing to counter the carefully documented discharge rationale.

The agency had investigated each complaint and took statements from Lakes’ subordinates about the false reports. It also had computer records verifying the false reports.

Lakes had nothing to counter the charges. He couldn’t, for example, point to anyone else who had been treated more favorably who belonged to another race or nationality than he did. The court dismissed the case. (Lakes v. Chertoff, No. C-07-1792, ND CA, 2008) 

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