Addressing employee behavioral issues can be tricky, but firing an employee without warning is never wise. In most cases, a … Read more
When it comes to terminating employees, it should be clear that you can’t fire someone for discriminatory reasons, including age, race, religion, sex, disability and genetic information. Discrimination remains illegal under various federal and state laws, regardless of your state’s at-will employment status.
Yet there’s another area that can get employers in trouble and open the door to a wrongful termination case: retaliation. What is retaliatory firing — and how can you prevent the legal complications associated with it?
Almost all federal employment laws include anti-retaliation provisions. Yet retaliation claims continue to rise.
The legal definitions and standards vary, but employees are generally safeguarded from retaliatory termination for the following types of legally protected activity:
In fiscal year 2018, more than 51% of charges filed with the Equal Employment Opportunity Commission (EEOC) were due to retaliation — a 2.8% increase from the previous year.
Anti-retaliation practices are challenging to many employers because it’s human nature to act against someone who accuses you of wrongdoing, or exposes your business to fines, penalties, a damaged reputation or other financial loss.
However, retaliation is against the law and can result in significant penalties even greater than the underlying accusation or complaint of wrongdoing. To make a claim for retaliation, an employee must establish three things:
Regarding the second and third point, an adverse employment action is any negative treatment impacting an individual’s employment or working conditions. Firing is the most common, and severe, action. Other examples include:
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Scenario: Retaliation after an unfounded charge of harassment
An employee files a claim with the EEOC accusing her employer of national origin harassment. Eventually, the EEOC dismisses the claim and concludes there is no evidence of unlawful harassment. Several months later, the employee is passed over for a promotion and believes the decision was in retaliation for her EEOC charge. She files a new charge with the EEOC, this time alleging retaliation. Even though the initial claim of harassment had no merit, she still can pursue a claim for retaliation and recover substantial damages against the employer if the promotion decision was retaliatory. In other words, retaliation laws often give plaintiffs a “second bite of the apple” after filing an unsuccessful claim.
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So where does this leave you? Retaliation claims routinely arise from nothing more than bad timing. Before terminating someone, always consider the timing and whether it creates the perception of illegality. In addition, all of the following should be true:
The bottom line: You must be able to distinguish the termination decision from the protected activity and be confident there’s no connection between the two.
The right tools and a clear action plan can help you handle the toughest situations. The Progressive Discipline Smart App from HRdirect is ideal for addressing employee discipline issues promptly and appropriately, as well as providing the necessary backup if termination becomes your only option.
For additional resources and expert direction, check out the free webinar, Avoid Termination Blunders: How to Fire an Employee Legally and Fairly, or the tip sheet, Fire Without Fear: Everything You Must Consider Before Choosing to Terminate.
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