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Ensure complaint doesn’t taint firing decision

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in Discrimination and Harassment,Human Resources

Employees who file discrimination complaints are protected from retaliation. When a complaint is closely followed by termination, it becomes easier for the fired employee to show the two were linked and that one caused the other.

Smart employers cut this causal connection by making sure that whoever makes the termination decision wasn’t involved in the employee’s original complaint.

Employers with large HR departments can, for example, have dedicated HR staff assigned to complaints, while other HR staff handles routine discipline. Smaller firms may want to consider outsourcing internal complaint investigations so that as few people as possible know the details or even that an employee filed a complaint.

Building virtual walls make it much easier to argue the decision-maker didn’t use the complaint against the employee because the decision-maker didn’t know about the complaint.

Recent case: Christine managed a BJ’s Warehouse retail store. She filed an internal discrimination complaint against a supervisor. About five weeks later, the company received an anonymous tip on its ethics hotline claiming that Christine had broken company rules against intoxication while working.

An HR professional investigated and Christine admitted drinking in the parking lot. She explained, however, that it was a celebratory drink after conducting the store inventory—a practice she claimed was long-standing and a regular occurrence throughout the company. The HR staffer recommended termination and Christine lost her job.

She sued, alleging retaliation for filing her discrimination complaint.

But BJ’s readily showed that no one involved in the second investigation knew anything about Christine’s complaint and therefore could not have used the hotline tip and subsequent confession as an excuse to can Christine for her earlier complaint. The case was dismissed. (Michaels v. BJ’s Wholesale Club, No. 14-3370, 3rd Cir., 2015)

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