Sometimes, employees who know they are in trouble will file a discrimination complaint as a pre-emptive strike. They assume their employers will worry that a court might see any further disciplinary action as retaliation.
Don’t be intimidated by this tactic! Instead, make sure you have thorough documentation concerning any prior disciplinary actions (e.g., warnings, write-ups). Then, move on and handle the employee as you would any other employee. Don’t throw the book at the employee if the circumstances don’t warrant it. But don’t shy away from legitimate discipline.
Recent case: When Harlan Ashcraft was fired from his job as a deputy sheriff, he sued. He alleged the firing was retaliation against him for defending the honor of his wife, a former sheriff’s department employee. She had accused a department sergeant of spreading unfounded rumors about her. She eventually settled a sexual harassment case against the department over the rumors.
But the sheriff’s department detailed the reasons it fired Ashcraft. First, it had several reports from other employees that Ashcraft regularly slept on the job. Second, he was caught running a on a relative for personal use and not for official business. Finally, he was accused of using a stun gun on an inmate without provocation. Ashcraft said these were all excuses to fire him for speaking up for his wife.
The court disagreed. No other employee had broken so many rules without being fired. It said the discipline was unrelated to any protected activity relating to his wife’s harassment complaint. (Ashcraft v. Beicker, et al., No. 07-CV-00860, DC CO, 2008)
Final tip: Consider having someone in HR track all disciplinary action, checking to make sure like offenses earn like penalties.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Document details to differentiate discipline
- Small Employers: Introduce the '15-Employee Threshold' Defense Early
- The whole truth: Discrimination costs Philips Lighting $164,850
- Carefully document every rule violation to defend against surprise claims