Gregory Fogleman claimed that the age-old parable about a son being punished for the sins of his father played out in his workplace. As a result, Gregory's employer could pay more than 30 shekels for the crime.
What happened? Gregory worked as a hospital security guard for 18 years. His father had also worked there until he resigned after filing a job discrimination lawsuit.
About a year after his father filed the suit, Gregory was fired after an incident ?at the hospital's gift shop. Alleging that he was truly fired because of his father's lawsuit, he sued under the retaliation provisions of two federal laws: the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).
The court let the ADA claim proceed. Reason: Under the ADA, a company can be held liable for "third party" retaliation against relatives and friends of employees who claim discrimination. The court didn't let the age-bias claim go forward because the ADEA doesn't offer such protections. (Fogleman v. Mercy Hospital Inc., No. 00-2263, 3rd Cir., 2002)
Besides third-party retaliation claims, the court also said the ADA recognizes a "perception" theory of retaliation, that is, retaliation because an employer perceives the employee to be engaging in protected activity (filing a lawsuit, helping in a lawsuit, etc.). So, in effect, this decision opens the door wider, making it possible for employees to win retaliation suits even if they haven't engaged in any protected activity.
Advice: To avoid trouble during firings, put on your lawyer hat and consider every potential lawsuit that could come from that worker. Review and follow yourprocess to make sure there's a well-documented, performance-related reason for your actions.
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- Retaliation doesn't have to be part of original complaint.