September 09, 2014
Retaliation claims can exist even where there was no basis for the original charge of discrimination. This is especially true in cases involving sexual harassment because supervisors, whether guilty or not, normally respond with anger when confronted with claims of sexual harassment. One of the first things I advise my clients when faced with such charges is to make sure that the supervisor does nothing that would give the employee the chance to argue that he or she was the victim of retaliation.
Whenever an employee exercises a right, any adverse action against that employee can be scrutinized to determine if it was caused by retaliation. If the action takes place immediately after a charge, courts and agencies tend to find timing a relevant consideration. Many employers, with some justification, think they can fire an individual whose charges of discrimination are found to be baseless, but that is far from the case.
If the charges were made in good faith, even if untrue or baseless, the anti-retaliation provisions apply. In fact, the law so favors an employee’s right to make charges without fear of retaliation that it is generally a good idea not to take adverse action against the employee without clear evidence that the charge was made in bad faith.
A particularly difficult problem to deal with is the current employee who makes a charge of discrimination, then decides to push the envelope by cutting back on work performance. In fact, over the years, I’ve seen many cases where it appears that the alleged victim is trying to get fired, after making the charge of discrimination, by doing stupid things. In the past several years, we have had to fire employees while charges of discrimination were pending because the number of instances of misconduct were growing geometrically. That does not mean, however, that the EEOC or a court will
agree that the person deserve to be fired.
If confronted with a bad faith charge of discrimination or an employee who appears to be trying to get fired after filing a charge, gear up on the documentation end. As you gather evidence, present it to the employee and put it in the personnel file. While the employee may make the claim that you are scrutinizing his or her performance more carefully following a charge of discrimination, it is better to have the documentation if termination or discipline becomes necessary.