Occasionally we have an employee we would like to discipline (or fire outright), but the employee has recently done something that leaves us open to a retaliation charge if we take action against them-like making a discrimination complaint, requesting FMLA leave, or talking to OSHA about safety issues. Right now, we have a manager who wants to fire an employee with a bad attitude. He has been late for work quite often, and his production has been slipping. The worker announced last month that he talked to the EEOC about a discrimination lawsuit. Unfortunately, the manager’s backup paperwork is weak-the guy got a “satisfactory” rating on his last review four months ago. Can we fire him? And, more generally, what are the circumstances that give people “retaliation protection,” and how far does that protection go?
— HR Manager in Yuba City
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We turned this tricky question over to Allison West.
The scenario you describe is one that HR professionals and managers frequently face. An employee cries “discrimination” (or “harassment”) as you begin progressive discipline or just as you are about to say, “You’re fired.” Even if that underlying claim is unfounded, what started out as one claim may now turn into two: if you take any action against the employee, enough evidence may exist to support a retaliation claim. According to EEOC statistics, retaliation claims have doubled in the last ten years, and the verdicts can be staggering.
What Kind of Conduct Gives Rise to Retaliation Protection?
Retaliation claims are typically not hard to make because an employee does not have to prove any underlying harassment or discrimination. The employee simply must prove that: 1) he or she engaged in a “protected activity,” 2) the employer subjected the employee to an adverse employment action, and 3) a causal link existed between the protected activity and the employer’s action.
The first prong of a retaliation claim is at the heart of your question. The Fair Employment and Housing Act says it is unlawful “[f]or any employer…to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”1
Under what we call the opposition clause, the complaining person need have only a reasonable good-faith belief that the employment practice he or she opposed was unlawful—it does not matter if a court later determines the practice was not actually unlawful. For example, suppose an employee complains that her manager failed to promote her because of her race. This opposition is protected because the employee has a good-faith belief that discrimination occurred. If, however, the same employee complains she didn’t receive the promotion when she knew the position required a certificate and she did not have one, the claim would fail. Her opposition would not be protected because she did not have a reasonable, good-faith belief that she was rejected because of race discrimination.
Managers should also be aware that an employee can even make a complaint on behalf of another’s perceived discrimination. For example, Doug works with Mary, who is pregnant. The manager is upset that Mary will be taking a long leave of absence and treats her in a way that Doug believes is discriminatory. Doug complains to the manager about Mary’s treatment. The manager then takes some type of adverse employment action against Doug. Believe it or not, Doug is protected from retaliation under the Pregnancy Discrimination Act even though he is not (nor will ever be) pregnant.
Retaliation claims may be made under a number of laws—for example, the Occupational Health and Safety Act, Family and Medical Leave Act, California Family Rights Act, Pregnancy Discrimination Act, Americans with Disabilities Act, and the Fair Labor Standards Act.
Protected activity also includes the mere threat of filing a complaint. For example, an employee’s alerting her employer that she was going to pursue a claim under the FLSA was considered protected activity, even though no formal complaint had been filed with the Department of Labor. Other forms of reasonable opposition upheld by courts include peaceful picketing, informal or formal complaints to management, requesting a reasonable accommodation (disability or religious), and refusing to obey an order.
On the other hand, the following situations have been found to be unreasonable opposition that was not protected: violating legitimate company policies or rules, refusing to perform work, intentionally disrupting the employer’s business, interfering with business opportunities, violent picketing, not giving employer some notice that the conduct is unlawful, badgering a co-worker to provide a witness statement, and attempting to coerce her to change her statement.
Protection under the participation clause is somewhat broader than under the opposition clause. For example, in some cases it may extend to someone closely related to or associated with the person engaging in protected activity, and it may extend to protected activity that is related to a case involving a different employer. Furthermore, in most jurisdictions, no requirement exists that the participation be based on a reasonable good-faith belief in the unlawfulness of the conduct in question.
Can You Terminate or Discipline Someone Who Has Engaged in Protected Activity?
The answer is, “It depends.” Most employment attorneys will advise you to be cautious—the protection for retaliation claims as noted above is significant. In your case, without knowing the specific complaint of discrimination, we can’t be sure, but your employee could very well be protected from retaliation.
The most important part of feeling comfortable with any termination—especially when a retaliation claim threatens—is the documentation that supports the decision. Documentation must be able to withstand even the strictest scrutiny. Does your documentation show every effort that the employer made to help the employee succeed? Was the employee given every opportunity to turn around the poor performance? Can you show you were fair? If any doubt exists, keep documenting. The old adage “better safe than sorry” really does apply to retaliation claims. Because your documentation is admittedly weak, you might have a situation where the manager is not effectively coaching and counseling the employee. Juries are often loath to second-guess an employer who did all the right things and had proper documentation. If all the documentation was in order and you were set to terminate the employee just as he or she informed you of the discrimination complaint, you might feel comfortable exercising your right to terminate the employment.
Also, you must consider conducting an investigation into the allegation of discrimination before making any decision to terminate. Nothing gets jurors angrier than believing an employer did nothing in response to an employee’s complaint.
Finally, you must be careful about timing. The third and final element of a retaliation claim is the causal link between the protected activity and the adverse action. The closer in time the adverse action is taken to the protected activity, the more suspect it becomes. Caution dictates waiting a sufficient time to get your documentation in order, as well as coaching and counseling the employee, before considering termination.
Allison West is principal of Employment Practices Specialists, an employment law training and consulting firm in Pacifica.
1 Govt. Code § 12940(h).