EEOC complaint was dubious, but worker still made an EEOC retaliation case

Avoid exceptions to disciplinary guidelines

We’ve been pulling the alarm cord on EEOC retaliation cases and the hits just keep on coming. Now from a federal appeals court comes another important ruling on an EEOC complaint that makes HR’s life harder. It happened this way: An employee at a General Electric plant in Kentucky got into trouble for disappearing when he was supposed to be working, and for talking back to supervisors. He was eventually put on a “last chance” agreement.

REPEATED INSUBORDINATION

Even though he broke the agreement with another incident of insubordination, the company suspended him instead of firing him. During the suspension, he filed an EEOC complaint for age discrimination. Two months later, he again refused an order, and this time was fired. He sued for retaliation, claiming the company trumped up the last incident as punishment for his EEOC complaint. A federal district court threw the case out. But the appeals court reinstated the case, saying it was strong enough to go to trial.

A SHOCKING OUTCOME
This result is a shocker for HR. The employee had serious behavioral and performance issues, which GE had amply documented. The timing of his EEOC complaint suggested that he filed it to cover his flanks at a time when he knew he was skating on very thin ice. And the company showed leniency by suspending instead of firing him for the next-to-last incident. And still the employee won.

Why?

The appeals court suggested that the company, irked by the EEOC complaint, increased its scrutiny of the employee when he returned from suspension so as to find an excuse to fire him.

The fact that GE once showed leniency didn’t shield it from the retaliation charge, the court said. Here’s how the court explained its reasoning: “Were we to adopt GE’s position, an employer could insulate itself from a charge of retaliatory treatment by staging an incident to display its purported ‘favorable treatment’and then waiting for a second opportunity to terminate the employee.”

In other words, an employer that sincerely tries to salvage a problem employee but then gives up can still get hit with a retaliation charge that sticks, if the employee sneaks in a bias complaint in the meantime.

REASSESS DISCIPLINE

This may not sound fair to you. And it didn’t to one of the appeals court judges, who dissented from the ruling. But in light of this decision, HR may need to reassess disciplinary procedures.

You may want to:

• Delay terminating employees who have made EEOC complaints for at least 4-6 months, if possible.
• Avoid exceptions to disciplinary guidelines.

If GE had fired this employee when it first had a chance, no retaliation charge would have been possible.

Cite: Hamilton v. General Electric Co., No. 08-5023, 6th Cir., 2/12/09