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Think twice before piling on worker who’s suing

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in Employment Law,Human Resources

Employees who file EEOC complaints, hire an attorney or file a lawsuit alleging Title VII violations are protected from retaliation. If you make any sudden adverse employment decisions after the employee has engaged in those protected activities, you’re likely to face retaliation charges, too.

That doesn’t mean you should never discipline or fire employees who take you to court. It does mean you must make sure you can show you would have taken the same action even if the employee weren’t suing you.

Recent case: Gloria King, who is black, was terminated from her job with United Way. She had worked under an employment contract that allowed termination either for cause and without cause. She was initially terminated without cause.

She filed an EEOC complaint, hired an attorney and filed a lawsuit.

The day after she filed the lawsuit, United Way changed her termination to a for-cause discharge, making her ineligible for a salary continuation plan. That, she alleged, was retaliation.

The court said her case could go forward, largely because of the timing. King was first terminated “without cause.” When she sued, that was immediately changed to “with cause.” The timing alone was enough to keep the lawsuit moving. (King v. United Way of Central Carolinas, et al., No. 3:09-CV-164, WD NC, 2010)

Final note: Get your own attorney involved right away when an employee retains counsel or files an EEOC complaint. Your lawyer can make sure your actions are defensible—or at least explain the risks of each course of action.

Of course, the best approach is to get counsel involved even earlier, before making the decision to terminate an employee.

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