Can you discipline an employee who has recently complained about harassment? Yes, but you must be ready to prove the discipline was unrelated to the complaint. Attorney Bob Neiman breaks down a recent lawsuit that shows some of the circumstances under which this can be done.
An employee who fails to immediately report certain workplace incidents as required by either an employee handbook or a supervisor’s instruction constitutes a valid reason for an employer to fire the employee, and defeats retaliation claims by that employee, according to a recent decision from the Seventh Circuit Court of Appeals in Chicago.
Told to report to HR
In Lord v. High Voltage Software, Inc., an employee reported that he had been sexually harassed by male co-workers. After the employee first reported the harassment to HR, the company investigated the matter, met with the employee, told him that the incident did not rise to the level of sexual harassment, and told the employee to report any further harassment allegations to HR “immediately.”
The employee then allegedly suffered other incidents of harassment, but failed to immediately report those subsequent incidents to HR as directed.
The employer later disciplined the employee for certain performance issues unrelated to the harassment allegation. The employee then accused the company of retaliating against him for having reported the initial sexual harassment incident to HR.
Fired for failure to report
After discussing the performance issue with the employee, the employer withdrew the employee’s disciplinary write-up, but the employer fired the employee the next day for having failed to immediately report the second harassment incident to HR as instructed, among other reasons.
The employee sued for retaliatory discharge, claiming that the employer had fired him for having reported the initial incident of alleged harassment. The Seventh Circuit, however, noted that when confronted with an employee’s circumstantial evidence of a retaliatory motive, the employer may show that it would have fired the employee even absent his complaints about harassment.
The court began its analysis by noting that as long as a plaintiff in a retaliation claim has a sincere and reasonable belief that he is opposing an unlawful practice, the objective reasonableness of such a plaintiff’s belief depends upon whether it falls into the category of conduct prohibited by a particular statute, not by examining whether the conduct was persistent or severe enough to be unlawful.
Court: Not protected activity
Notably, however, the court explained that although the plaintiff’s complaints alleged workplace banter with sexual overtones, the plaintiff presented no actual evidence that he was harassed because of his sex. The court therefore determined that the plaintiff’s belief that he was complaining about sexual harassment, while perhaps sincere, was objectively unreasonable.
Yet the Seventh Circuit also noted that even if it assumed that the Plaintiff’s complaints about workplace harassment were protected activity under Title VII, he had still not shown that the employer fired him because of those complaints, noting that retaliation claims required proof of causation which, in this context, required but-for causation.
Although the Plaintiff pointed to the fact that he was fired just two days after his second harassment report, and that the temporal proximity between his second harassment complaint and his termination was suspicious, the Court explained that suspicious timing by itself will rarely support an inference of retaliation. Such suspicious timing will only support an inference of retaliation, the court explained, when an adverse employment action follows on the close heals of protected expression and the plaintiff can show the person who decided to impose the adverse action knew of the protected conduct.
The court also noted that the employer had presented evidence of several non-retaliatory reasons for its decision to fire the employee, including the employee’s failure to immediately report allegations of harassment to HR as instructed. Because the employee conceded that he had not immediately reported the second allegation of harassment to HR as instructed, the Seventh Circuit held that the employer’s reasons for firing the employee were not pretextual, and therefore could not form the basis of a retaliatory discharge claim.
The employer also presented evidence of other work-related performance issues by the plaintiff. The court explained that when confronted with circumstantial evidence of a retaliatory motive, the employer may show that the employee would have been fired even absent his complaints about harassment. And if the employer makes that showing, then the alleged retaliatory motive, even if unchallenged, was not the but-for cause of the plaintiff being terminated.
Would have been fired absent complaints
The employer presented evidence that, separate from the plaintiff’s failure to immediately report the second harassment allegation, the plaintiff had a fixation on his co-workers’ performance, timeliness, and conduct, and that plaintiff had engaged in insubordination. Because the Plaintiff presented no evidence rebutting these other performance issues not related to the harassment allegation, the Seventh Circuit held that the employer’s motives for firing the employee were legitimate and not pretextual.
What this ruling means for employers
Many employers, especially those in regulated industries such as financial services, health care, construction, utilities, food processing, and other industries, require employees to “immediately” report certain incidents, both because statutes and regulations require the employer to immediately report certain incidents to government regulators, and because the employer itself needs to immediately address certain types of issues internally.
Frequently, however, an employee who fulfills their obligation to immediately report incidents as required may engage in unrelated inappropriate conduct, but the employer may be afraid to discipline or terminate the employee for such unrelated misconduct out of concern that the employee will bring a retaliation claim.
Many employers have faced the predicament of whether they can discipline or fire an employee who violates some company rule or policy after that employee has engaged in some kind of “protected activity” — such as reporting violations of workplace safety rules, whistleblower activities, discrimination, or harassment. Courts generally hold that employers can discipline such an employee, because the employee who engaged in such a protected activity isn’t granted any special status that immunizes the employee from discipline or termination if the employee subsequently violates some company rule or policy. But such discipline or termination cannot be a mere pretext for penalizing such an employee for having engaged in the protected activity, either.
This case provides such employers with a high level of comfort. As long as the employer can establish that it disciplined or terminated the employee for engaging in unrelated misconduct — in this case, the failure to immediately report subsequent incidents of alleged harassment — then the employer should be able to defeat retaliation claims brought by the employee.
Bob Neiman is a labor and employment law attorney for the firm Much Shelist, P.C. Neiman is co-chair of the firm’s health care practice and focuses his practice on regulatory counseling and litigation, employment-related counseling and litigation, and commercial litigation, including insurance coverage matters and other business dispute.