Retaliation: The Hardest Claim To Defend

On September 12, 2013, the Massachusetts Commission Against Discrimination (“MCAD”) issued a decision finding that a company illegally retaliated against an employee who had recently complained of discrimination. The case, MCAD v. Saybolt, LP is discussed below.

What You Need To Know.  Anytime you want to discipline or terminate an employee who has complained of discrimination or any violation of law, you must recognize that your action could be seen as illegal retaliation.  Before taking any action, you should review the facts and make sure your decision to terminate or discipline the employee hasn’t been influenced, at all, by the employee’s recent complaints.  Further, since your decision could easily been seen as retaliation, you should consider slowing down your process and taking less drastic steps to help improve a problem employee.  Only after your efforts to help the employee have failed should you move forward and terminate someone based upon performance if the person has recently filed a complaint.

This ruling by the MCAD discusses a classic case where a company has trouble managing an employee who has complained that a manager discriminated against the employee. Every company struggles with this fact pattern.  The employee is defensive after filing a complaint and the manager is uncomfortable being around the complaining employee. Nevertheless, both parties have to keep working together.  Tensions inevitably mount in the workplace unless someone steps in to help.

In these types of cases, the manager needs to be counseled on how to work with the employee.  All discipline and performance evaluations need to be reviewed by HR, or a more senior manager, to ensure the manager’s decisions are not tainted by his or her understandable anger about the filed complaint.

In this MCAD case, after the employee complained of discrimination, Saybolt quickly took a series of unfortunate actions which were viewed as retaliatory by the MCAD.  For example, Saybolt:

asked the employee if she intended to resign,

told the employee that she needed to “work cooperatively” with the manager she complained about but offered the employee no support working in a small office with the manager, 

began closely monitoring the employee’s attendance and performance after she complained of discrimination but offered little assistance to help the employee succeed at her job, and 

fired the employee for poor performance and attendance just two months after she made her complaint of discrimination.

Significantly, the MCAD noted that the employee had not been identified as a poor performer prior to filing her complaint.  The first time the employee learned that the company was unhappy with her performance was on the day she was terminated.  While there was evidence that the employee’s performance was not stellar, the MCAD felt that the company used “performance” as an excuse to terminate when other options existed. The MCAD noted that the company made no effort to create a performance improvement plan or warn the employee that her performance problems could lead to her termination.   The MCAD clearly believed that the company would have worked harder to help the employee succeed, instead of terminating her, if she had not filed the discrimination claim. Because of her complaint however, the MCAD believed the company was more motivated to fire the employee than improve her performance.

Of course, filing a complaint of discrimination does not protect an employee from being terminated if the employee’s behavior warrants termination.  But, before termination, an employer needs to look long and hard at the fact pattern and make sure the employer isn’t moving more quickly to terminate because the person previously complained about discrimination.  You should contact EmCo Consulting for help evaluating a potential termination case before you take any action against an employee.

An interesting side note is that this case was tried in August of 2012 and final briefs were filed in November of 2012.  The MCAD issued its decision in September of 2013, over one year after trial.  This demonstrates how long litigation can take.  In general, companies are best served by taking preemptive action to avoid lawsuits.  Once a claim is brought, companies should obtain outside counsel to evaluate the claim and determine if settlement is the best and quickest method of ending the lawsuit.  While settlement may seem unpleasant, it is the only way of controlling the resolution and ending the claim quickly.   Often claims can be settled much quicker, and cheaper, when first brought. EmCo can help you evaluate employee demand letters or lawsuits when first filed to determine if settlement, or defense, is the best strategy.