How to Fire an Employee Who Has Filed a Claim With the EEOC
The United States has a plethora of anti-discrimination laws, most prominently Title VII of the Civil Rights Act of 1964. The federal laws – which are enforced by the Equal Employment Opportunity Commission (EEOC) - forbid discrimination for reasons relating to disabilities, age, genetic make-up, race, color, religion, sex, or national origin. One unfortunate side effect of these policies is that they make a sticky situation of firing any employee that has filed a complaint with the EEOC, even if they deserve to be fired.
Understand Protected Activities of Employees
As an employer, in order to avoid complications with he EEOC you must demonstrate that there is no relationship between the decision to terminate and (a) the fact that an EEOC claim was filed or (b) any form of discrimination. Employees are specifically protected so that they cannot be fired in retaliation for filing a claim with the EEOC. You can familiarize yourself with what constitutes retaliation at the EEOC website.
According to California Labor Lawyers, the following activities are considered protected and cannot be violated by an employer:
- Complaining about alleged discrimination against oneself or others
- Taking part in employment discrimination proceedings
- Filing a charge of employee discrimination
If you are unsure if an action could be violating the rights of your employees, its best to err on the side of caution. In one case, an employer was found liable for retaliation after firing the spouse of an employee that filed a complaint.
Have a Reason to Fire Them
Clearly it is important to establish a valid reason for the termination. For this, your bookkeeping and paperwork will be your best friend. Employee evaluations, attendance records, and poor quality work samples will provide evidence that the termination was made justifiably for work reasons. Reference sections of an Employee Handbook – which the employee should have signed – and compare them to their history of behavior. If you have done a good job communicating your expectations, there should be a clear reason whenever an employee is fired.
One mistake employers can make is assume that downsizing is a valid reason to fire any employee. As the 2010 Citigroup lawsuit demonstrates, corporate cutbacks can be a challenged on the basis of discrimination. When Citigroup was downsizing in response to the economic downturn, they happened to lay off a disproportionate amount of female employees. In return, they were hit with a gender discrimination lawsuit. Keeping on top of evidence for termination can protect you and your business in the event the former employee aims to sue.
Be on Your Best Behavior
While some may claim censorship or complain about our litigious society, the best way to avoid a mess with the EEOC is to avoid making statements, jokes, or actions that can be interpreted as discriminatory towards a particular gender, race, religion, age or other group. A distasteful joke heard by a few witnesses could make all the difference in a lawsuit.
Cooperate with EEOC Guidelines
Whether you believe a filed claim is legitimate or not, cooperating with EEOC guidelines will improve your position in case a reactionary lawsuit is filed. This means listening to and addressing potential discrimination issues in your employees and working with remedy measures such as mediation, investigation, and conciliation.
For additional information, check out the employer section of the EEOC website.