Tick, Tock. Watch the (Retaliation) Clock
It’s pretty obvious that you should not fire an employee who just filed a discrimination claim. But is that rule sealed in cement? One court recently said, “Nope, not if the reason is really, really, really good enough.” So what’s “good enough?”
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Case in Point: Will Singleton worked as a registered nurse at a Kentucky hospital. Singleton, who is white, submitted a race discrimination complaint with the hospital, arguing that black employees were being given preferential shift assignments. Two weeks later, the hospital suspended him. And 16 days later he was fired.
Singleton sued, claiming the firing was retaliation under Title VII of the Civil Rights Act for filing a discrimination claim. But the hospital denied the firing was retaliation and, instead, pointed to another reason: Singleton’s ongoing problems with documenting narcotics and patient pain levels.
Singleton’s errors could endanger patients, the hospital argued, so it had no choice but to terminate him, regardless of the timing. The hospital was also able to show “a wealth of documentary evidence” of Singleton’s inconsistencies or mistakes.
The result: A divided three-judge appeals court panel sided 2-1 with the hospital, saying safety was a good enough reason to fire Singleton, even if the firing cam so soon after the discrimination claim.
But the third dissenting judge issued this warning to employers: Tick, Tock, watch the clock. The claim. The axe. Too, close together. Sounds like retaliation. (Singleton v. Select Specialty Hosp.-Lexington Inc., 6th Cir. unpublished opinion, 8/2/10)
3 Lessons Learned … Without Going to Court
1. The ‘Safety Trump Card’ wins. There are very few valid reasons an employer can legitimately fire someone who just filed a discrimination claim. Safety is one of them.
2. Use it. Employers have an obligation to make sure that work is done safely.
3. Carefully. But remember, the court has a retaliation stopwatch … and it’s ticking.
Retaliation is now the No. 1 EEOC claim
In 2009, retaliation overtook race as the most popular type of discrimination charge filed with the EEOC. One reason: Retaliation has become easier to prove in court since a 2006 Supreme Court decision adopted a broader defintion of retaliation. Here are the number of retaliation claims that employees have filed with the EEOC since 1997:
1997 18,198
1998 19,114
1999 19,694
2000 21,613
2001 22,257
2002 22,768
2003 22,690
2004 22,740
2005 22,278
2006 22,555
2007 26,663
2008 32,690
2009 33,613
Source: EEOC Charge Statistics