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Seriously, You Guys, You Can’t Retaliate

Most employers are aware that the law prohibits retaliating against an employee for engaging in protected activity, such as complaining about discrimination/sexual harassment, seeking an accommodation for a disability, or requesting FMLA leave. Yet these same employers sometimes engage in unlawful retaliation – without recognizing that that is what they are doing.

Consider this scenario. An employer has an employee who has been a problem for some time. The employee in question – we’ll call her Penelope – is a constant complainer. She complains about everything from faulty office equipment (she doesn’t like the Xerox machine) to office hours (she feels a 9:30 start time is more realistic than 9:00), but her favorite subject to complain about is her colleagues. Penelope does not get along with Susan and complained to management that Susan is mean to her. Penelope thinks Mike is out to get her, and asked management to do something about it. Penelope requested a cubicle reassignment because her cube-mate, Janice, coughs too much.

When Penelope is up for a promotion that ultimately goes to Mike, she complains that Mike only got the promotion because he is a man. Penelope’s manager, who knows that Mike was by far the best candidate for the job, is fed up. Exasperated by Penelope and her endless complaints, the manager decides it is time to let Penelope go.

The problem here is that, unlike her prior complaints, Penelope’s final complaint constituted protected activity under the law. Penelope was complaining about gender-based wage discrimination, which is unlawful under Title VII. To the manager, the gender complaint seemed like just another baseless, petty complaint in a long line of such complaints. But because Penelope invoked discrimination this time, her final complaint was in a different category than her prior complaints – that of protected activity.

Moreover, it does not matter that the manager knew there was no actual discrimination, given Mike’s clear qualifications for the promotion. Rather, as long as Penelope had a good faith belief that she was the victim of discrimination, terminating her for making that complaint was unlawful retaliation.

So how can an employer avoid falling into this trap? First, when it is clear that an employee is not working out, when problem behaviors have persisted despite attempts to work with the employee, an employer should consider taking disciplinary action sooner rather than later. When an employer procrastinates on the decision to terminate, it is only a matter of time before the employee may do something that constitutes protected activity. Aside from complaining about discrimination, she might ask for FMLA leave, seek accommodation for a disability or religious belief, or talk to her co-workers about unionizing. As soon as she engages in such activities, the employer is in the position where any termination within a reasonable time thereafter could be alleged to be retaliatory.

Second, employers should always consult with counsel or an HR expert before taking disciplinary action against a problem employee. Such an advisor can identify any risks that may be present, and help the employer devise a plan to discipline the employee in the most risk-averse manner possible.

If you have questions about how to avoid retaliation claims, contact an HR professional at PMP.

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