Tuesday, January 17, 2017

Don’t Ignore the Timing of a Discharge

Do you have an underperforming or misbehaving employee whom you are thinking about disciplining? Has this employee recently filed a complaint with the EEOC or Illinois Human Rights Commission? If so, you may want to consider delaying your decision to discipline the employee to avoid giving the employee a reason to claim that he or she was retaliated against. A recent case from the 7th Circuit Court of Appeals, Maria Gracia v. Sigmatron International, offers an example of why this is.

Gracia was an employee at Sigmatron, a large manufacturer. She alleged that her boss sent her sexually suggestive photographs and called her at her house. When she did not reciprocate his interest, he began to write her citations for being tardy to work. Gracia had an exemplary work history prior to this, and went to HR to complain that she was being sexually harassed. HR and the company did essentially nothing, so she filed a complaint with the EEOC. Two weeks after she filed this complaint, she was fired for allegedly permitting an employee to use the wrong tool on an assembly line.

Gracia then filed suit against her employer, claiming that she was retaliated against for filing a complaint with the EEOC. Despite there being no direct evidence of this, the jury ruled in her favor. The court noted that the jury could consider circumstantial evidence like suspicious timing of firing, ambiguous statements, evidence that the reason given for the firing is just a pretext, and, consider whether all this evidence taken together supported an inference that the firing was retaliatory.

The court noted that while the timing of a negative employment decision is important when determining whether the decision is retaliatory, it alone is not dispositive. With that said, employers should be careful when they choose to fire or discipline an employee. If an employee files an EEOC charge or engages in other legally-protected activity, and an employer takes negative action against that employee, it could subject the employer to a lawsuit, even if the employer’s decision had nothing to do with the EEOC charge. Even if the employer is successful in defeating the suit, litigation is expensive, time-consuming, and intrusive, and employers should do everything they can to avoid it. Employers may want to consider consulting with an attorney to determine when the best time to take disciplinary action against an employee would be.