“I want to fire him, but I can’t.” It’s true that some employees come with “fire retardant factors”—they are in a protected class or performed a protected act—but this doesn’t mean you can’t fire them.
However, you do want to slow down and be sure that you aren’t discriminating or retaliating against them for asserting their legal rights. And, you have to be sure that you won’t be giving the appearance of discrimination or retaliation.
For example, you may have a good reason to terminate an employee, but if you do it the day after the employee makes a complaint to EEOC or OSHA, the appearance of retaliation is going to be hard to explain.
Here are the top five most problematic areas faced by employers:
- Members of a protected class
- Employees who’ve complained or filed some sort of claim, including corporate whistle-blowers
- Employees on medical, military, or other protected leave
- Employees who have contractual employment rights
- Employees who have asserted a public policy claim
Members of Protected Class
Federal law prohibits employment discrimination based on race, religion, national origin, sex, pregnancy, age, disability, citizenship, and military service. In addition, most states and many local governments (cities, counties, school districts, etc.) prohibit discrimination on additional grounds such as marital status or sexual orientation.
Employees who wish to file discrimination charges must begin with a charge filed with either the Equal Employment Opportunity Commission (EEOC) or the state agency designated to handle discrimination matters. Each one of these charges requires the employer to file lengthy response with supporting documentation, handbooks, policies, past and present employee names, addresses, and pertinent employment information of other terminated or disciplined employees during a specified period of time.
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If the matter is not resolved at the agency level, the employee has the option to bring an action in court.
Perhaps the biggest liability in discrimination cases is the attorney fee provision. Not only must you pay your own attorney’s fees, but if the employee prevails you are responsible for his or her fees and costs as well, in addition to any back pay, benefits, front pay, compensatory damages, and interest. Depending on the facts, you may also be subject to liquidation or punitive damages. Attorney fees alone may dwarf the damages recovered by an employee.
When Congress established the discrimination laws, they wanted to be certain that minimum wage employees would be able to take on large companies.
Employees Who’ve Engaged in Protected Activity
Most federal laws that prohibit employment discrimination also prohibit retaliation against employees who exercise their rights under those laws. Claims of retaliation under the federal discrimination laws—Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA)—tend to get the most attention, but the following federal laws also contain some sort of retaliation provision:
- Family and Medical Leave Act (FMLA)
- Fair Labor Standards Act (FLSA)
- Occupational Safety and Health Act (OSHA)
- Employee Retirement Income Security Act (ERISA)
- National Labor Relation Act (NLRA)
- Immigration Reform and Control Act of 1986 (IRCA)
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- Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)
- Employee Polygraph Protection Act (EPPA)
- Sarbanes-Oxley Act (SOX) (punishes retaliation against corporate whistleblowers and federal informants)
- Surface Transportation Assistance Act (STAA)
- Consumer Product Safety Improvement Act
- Rail Safety Improvement Act
- National Transit Security Act
Retaliation claims are a sturdy breed. They often survive even when the underlying discrimination claim has no merit.
In tomorrow’s Advisor, the rest of the protected classes, and an introduction to a new online training system for all your managers and supervisors.