Protect Your Small Business from Retaliation Lawsuits

A small, family-owned dental health products supplier was sued by the Equal Employment Opportunity Commission last week for allegedly firing a female salesperson one day after she complained to HR that she was being discriminated against.?The employee came to this conclusion because one of her client accounts was allegedly transferred to a male counterpart without her prior knowledge.?

Was the small business sued by the #EEOC for discrimination??

Nope – they were sued for retaliation; i.e., treating an employee less favorably (and firing someone sure is less-favorable treatment!) because he or she complained of discrimination.?

I don’t know how this termination actually came to be … I’ve only read the EEOC charge and some legal commentary about the case … but in my experience, one of two things happened:

1.????The small business is really terrible company, with arrogant owners who said “I’ll be darned if some employee is going to accuse us of discrimination. We don’t need complainers on our team – since she’s employed at will, let’s get rid of her immediately.”

2.????The female employee was a poor performer who sensed she might be terminated, so she rushed to allege discrimination in a (failed) effort to pre-empt or thwart the company from firing her.

We HR people know this happens a lot:?managers identify poor-performing employees that are hurting their business, but do nothing about it either out of laziness or incompetence.?No written warnings, no performance improvement plans, no quarterly performance evaluations.?No documentation that brings the manager’s bad opinion of the employee to the employee’s attention, with clearly-written expectations and consequences of continued poor performance. The managers just get more and more angry at the employee until they want to explode.

We HR people also know this happens a lot:?poor-performing employees who’ve been reprimanded by their supervisors or have reason to think their job is on the line will run, not walk, to tell HR that they’re being discriminated against or harassed.?

A poorly-performing employee’s complaint of discrimination isn’t exactly a “get out of jail free” card, but it at least presses a pause button on the friction between the employee and supervisor while a thorough, open-minded investigation is done by a neutral person. ?

As an interested observer with more than 25 years of HR experience and as a betting woman, my money is on placing more blame on the company than the employee.?Why??Because in the employee’s complaint, she says that in the meeting in which she was fired, she was presented with her 1st, 2nd, and 3rd written warnings in quick succession.?If that’s true – the company could not have concocted a more pathetic pretext of firing her legally for poor performance.

To avoid a retaliation suit, employers need to put a lot of distance between the day an employee makes a complaint like discrimination and the day that employee is “treated less favorably.”

How much distance all depends on the employer’s documentation and paper trail created before the employee made a complaint.

#Smallbusinessowners, do you have an employee you’re thinking of terminating??Let’s talk it through – for free – before you too run afoul of the #departmentoflabor.

#hrcompliance #employmentlaw #retaliation #hostileworkenvironment #discrimination