Can I still fire an employee for good cause even if they report harassment at work?
To be clear, it is considered retaliation if an employer fires someone because they complained to HR or anyone else about harassment. Retaliation is a claim that an employee can bring against their employer when they have suffered negative consequences at work in retaliation of the employee’s protected action. In order to establish a retaliation claim under Title VII, a plaintiff must demonstrate that: (1) they engaged in statutorily protected activity; (2) their employer took a materially adverse employment action against them; and (3) the protected activity and adverse job action are causally connected. That third element is usually where retaliation claims are won or lost. One of the things employees can do to show that their protected action—like reporting harassment— was casually connected to the adverse job action is to show a close proximity in time between the protected action and the adverse employment action.
Occasionally a situation arises where an employer has decided that they are going to fire a particular employee for a good reason, like failing to consistently meet deadlines or poor performance and then before the employer fires that employee they complain to HR or someone else about some type of workplace harassment. If that happens then employers are usually fearful of firing that employee right after the harassment is reported, and they should be. Firing that employee right after they have reported harassment only paves the way to an expensive lawsuit even when the employer had good reasons to back up their firing. Because of the close proximity in time between the protected activity and the firing the employee may have better chance at showing that they were fired because they reported harassment.
Retaliation lawsuits can be very costly for employers. The Equal Opportunity Employment Commission estimates that the average cost of an out-of-court settlement in a discrimination case is about $40,000 and an average of $50,000 for harassment cases. If the matter does go to court costs can easily exceed $150,000 and if there is an appeal, it could easily cost another $50,000 to $70,000 on top of that if not much more. Not only are these claims expensive to deal with, but they can potentially drag on for years. The last thing employers want to have to do after firing a difficult or underperforming employee is to continue to have to spend money dealing with that same employee for years after they were fired. Employers are right to be fearful of getting bogged down in retaliation claims as they can potentially result in an ongoing headache for years after an employee was fired.
So that begs the question, if an employer had good cause to fire an employee and then the employee reported harassment in the workplace, how long should the employer wait before they fire them?
Unfortunately, like in most areas of the law, there is not one simple answer. The short answer is probably about 6 weeks to be safe, but that won’t guarantee that the employee’s case gets thrown out. That answer depends partly in what area this case would be litigated because different jurisdictions weigh the timing of the adverse action differently.
For example, a 9th circuit case held that twenty days between firing and the protected activity was a short enough time to allow the employee to bring their claim. The 9th circuit tends to lean more toward allowing longer times between the protected activity and the adverse employment action than other jurisdictions. A recent case out of the 3rd circuit court of appeals, the court held that four weeks between the time of employee reporting and his firing was not a short enough time to justify a retaliation claim. A 6th court of appeals decision held that eight days between the time of the reporting and the firing was not short enough time to justify a retaliation claim. Some other jurisdictions decline to determine what timing is short enough to bring a claim and decide everything on a purely case by case basis.
If you find yourself in a situation like this one, it is best to avoid firing the employee until you have had a chance to discuss the situation with an attorney. If you have questions about this topic or any other employment matter the attorneys at Beresford Booth can help you.
To learn more about Can I still fire an employee for good cause even if they report harassment at work?, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.