A fourth factor involves the employee's historical performance. If an employer fires an employee who recently filed an EEOC charge, claiming that the employee was fired because of her foul language, the employer will probably lose in court if the employee routinely had used foul language in the past. In that case, a judge or juror will legitimately question why the employer did not terminate the employee sooner, and the recent EEOC charge will appear as the more plausible reason for discharge. Practical tips to avoid liability for retaliation Retaliation lawsuits are often expensive to defend and can result in awards of substantial compensatory and punitive damages. The best defense against such suits is to prevent them from arising in the first place.
Training reduces mistakes and sensitizes supervisors to the legal implications of their actions.
Before terminating an employee, determine if he or she has filed any charges of discrimination or workers' compensation claims. Before terminating an employee, determine if he or she has recently complained about criminal conduct or health or safety issues in the workplace. Determine how the company has treated other employees. Get internal consistency as to the reasons for the employment action. Document performance problems as they occur.