Protected activity occurred long ago? Discipline now won’t cost a retaliation suit
If an employee complains about discrimination or takes protected leave, beware taking any action that smacks of retaliation. Otherwise, you are risking a lawsuit.
That’s why HR should scrutinize any supervisory action that could be seen as punishment. In fact in the short term, it’s important to monitor any discipline against such an employee.
But the more time that passes, the less likely a court or a jury will see a connection between protected activity and discipline.
If the employee deserves discipline, go ahead and impose it.
Recent case: Angela worked for Morgan Stanley. She took several FMLA leaves back in 2008. Also in 2008, she participated in a class-action lawsuit against the company and received part of the settlement.
Then, in 2012, she quit, alleging that conditions were so terrible that she had no choice but to leave. Angela said she had been harassed for taking FMLA leave and for receiving settlement money.
But the court noted that Angela had never suffered any discipline. The four-year gap made it unlikely that any of the issues she complained about in the intervening years—such as hearing rumors she would be fired—could have been retaliation for long-past protected activity. (Camplese v. Morgan Stanley, MD PA, 2017)
Final note: Had the rumors circulated earlier, Angela might have had a better argument. And had the rumors proved true, the closer in time to her protected activity, the more likely it would have been retaliation.