What should employers check before firing an employee who filed a discrimination complaint?

This is the last in a series of posts about the EEOC’s proposed new retaliation enforcement guidance. The first post covered what is considered “protected activity” under the federal anti-discrimination laws. The second post was about what constitutes “adverse action.” This last post is about causation.

A Claim of Retaliation Requires a Plaintiff to Prove Causation

The employee also needs to prove that the employer’s adverse action was because of the employee’s protected activity. That is one of the legal elements a plaintiff must prove at trial.

If your employee comes to you to complain about harassment, you can still discipline or fire her if you have good, legitimate reasons for it. Likewise, complaining about harassment or filing an EEOC charge doesn’t mean the employee gets a free pass to come in late every day.

This is what lawyers call the “causal connection.” (The lawyers have a name for everything.) If it exists, the employee wins. If not, the employer wins.

Eight-question Checklist

Here is an eight-question checklist, drawn from the EEOC proposal. Before taking any negative action (discipline, firing, layoff, denied raise or promotion) against an employee who has complained about harassment or discrimination, ask yourself these questions.

First, how recent was the employee’s protected activity? The more recent, the more of a risk you are taking. The more time there has been, the harder it is for the employee to prove the connection. But there is still no guarantee. Some employers hold long grudges. Timing - “temporal proximity” - is just one issue to consider, but never the whole story.

Second, who is recommending that the employee be fired? Is it the manager that the employee accused of racism? You need to get somebody neutral - somebody outside the loop - to investigate and decide. Otherwise, the decision may look tainted.

Third, how objective is the reason? “Attendance” is objective. “Leadership style” and “fit with future company needs” are a lot harder to defend. Performance, leadership, fit - none of these issues have to be abandoned. But the more subjective your decision, the more risk you are taking, especially if the employee has previously filed an EEOC charge.

Fourth, how have similarly situated coworkers been treated for the same offense? Harsh treatment of this employee compared to others - even mild discipline for this employee when others get off free - is a big red flag to the EEOC. You need a strong, well-documented, non-retaliatory reason for the harsh treatment.

Fifth, are there small circumstantial signs that are adding up? The Federal Seventh Circuit Court of Appeals lets retaliation be proved by a “convincing mosaic” of circumstantial evidence. This is something the EEOC plans to adopt in its enforcement policy. For example, several episodes of suspicious timing, an increase in negative criticism of the employee, griping by management about the employee’s EEOC complaint, and leaving the employee out of after-work drinks - all of these could lead to a retaliation finding without any single piece of “smoking gun” evidence. Bits of circumstantial evidence, looked at by themselves, often mean nothing. But they can add up. You should worry when they reach critical mass.

Sixth, has the manager shown any resentment or hurt feelings because of the charge? They nearly always do. You need to be especially careful before taking any adverse action.

Seventh, does anything about this decision feel wrong to you? If you’re the HR professional, trust your gut. If you’re the lawyer, and the HR professional has misgivings, pay attention to that.

Eighth, have you talked with your employment lawyer before acting? (See number seven.)

Five Practices the EEOC Recommends

As a little holiday bonus, here are the five practices the EEOC recommends for dealing with retaliation:

• 1) a plain-language written anti-retaliation policy;
• 2) training of all employees, supervisors, HR and legal staff;
• 3) providing individual support for supervisors and managers who are accused of harassment or discrimination;
• 4) periodically checking in with the employee who complained of harassment to see if she feels retaliated against; and
• 5) having a review by HR, legal or senior management before any big decisions that could harm a protected employee’s job or career.

I agree with every one of these practices. If you sense that the complaining employee is feeling retaliated against, act immediately. Ask how you can help.