Category Archives: Retaliation

Withdrawal of Job Offer to Transsexual, Quirky Question # 68

Quirky Question # 68:

We recently filled a position with a highly qualified applicant.  After we made him an offer, he informed us that he soon would be undergoing a sex change operation.  He said that when he started the job, he would be a male, but within a month or two, his operation would be complete and he would be reporting to the job as a woman. We concluded that our company just did not need the complication this situation presented.  Therefore, we withdrew the offer and offered the position to another, admittedly less qualified, individual.  Any problems with our decision? Answer→

Retaliation for Participating in an Investigation, Quirky Question # 65

Quirky Question # 65:

Our company has made concerted efforts to encourage our employees to report incidents of possible discrimination.  Our HR Department is responsible for receiving and investigating discrimination complaints.  Through our internal investigation efforts, we have been able to head off possible litigation and address potentially serious problems.

On the flip side, however, the internal investigation process has given rise to some personnel management issues.  Just recently, for example, an employee with existing performance issues was interviewed in connection with an internal investigation.  She provided information corroborating another employee’s discrimination complaint.

Last week, the manager of the employee who was interviewed approached HR about terminating the employee because of her performance issues.  The manager is adamant that this employee must be discharged.  HR, however, is concerned that terminating her now, just weeks after she provided troubling information during an internal discrimination investigation, might be considered retaliatory.  Complicating the issue, the manager who is insisting on firing her is good friends with the person about whom she provided damaging information.  Maybe this just was coincidental.

It appears that the employee’s performance problems are fairly well documented and support a termination decision.  Can we go ahead with the termination without violating the laws against retaliation?  Would it be better to let more time pass before we terminate her?  Do we need to treat employees with “kid gloves” once they participate in investigations, or are we safe to proceed with business as usual?  Help! Answer→

Scope of Retaliation Claims, Family Members?, Quirky Question # 62

Quirky Question # 62:

Your pending question regarding the “temporal proximity” required for retaliation claims is interesting.  I have a slightly different question, also involving retaliation claims.

What is the scope of the protections provided by retaliation provisions.  For example, if one member of a couple, both of whom worked for us, sues us for discrimination in connection with her discharge, could we fire her husband?  We think it would be a weird dynamic to employ the spouse of someone who is suing us.  Similarly, if we terminated an individual and he later sued us for discrimination, could we refuse to hire his adult children if they sought employment with our company? Answer→

Timing of Retaliation Claims, Quirky Question # 61

Quirky Question # 61:

I am the General Counsel of a small company.  As our company’s only attorney, I have to provide expertise in a wide variety of substantive areas.  In connection with retaliation claims, I occasionally hear about “temporal proximity.”  When I’m advising my clients, I’d like to be able to provide them some clear guidance regarding the length of time during which they need to be sensitive to the possibility of retaliation claims.  Can you share any insights into this issue? Answer→

Litigation by In-House Counsel, Quirky Question # 50

Quirky Question # 50:

We are a small to mid-size company, with a relatively small legal department.  We have a General Counsel.  He, in turn, supervises two other attorneys.  The General Counsel joined our company about two years ago, and frankly, his relationship with C-level executives has not been ideal.  His relationship with the CEO has been particularly strained.  The CEO has advised me (Head of HR) on several occasions that she just does not trust the General Counsel.  She has expressed doubts about his judgment, his advice, and, critically, his loyalty to the Company.

The CEO recently asked me to initiate the process to remove the General Counsel from our firm.  I don’t know whether this leaked out, but soon thereafter, the General Counsel began sharing with me his concerns about whether our company is complying with the law in a number of areas squarely within his area of expertise.  He advised me that he informed the CEO and CFO of his evaluation but they appear to be ignoring his advice.  I feel as though I’m caught in the middle.

Assuming that we follow through with our plans to terminate the General Counsel, do we have any risks?  My assumption is that everything he has been told in the course of his job is protected by the attorney-client privilege and could not be revealed in any lawsuit against the company.  Similarly, I assume that he could not contend that he was fired in retaliation for bringing the supposedly illegal activities to our executives’ attention, inasmuch the concerns he articulated are squarely within his job responsibilities as our chief legal officer.  Am I missing anything? Answer→

Bad-Mouthing the Company, Quirky Question # 39

Quirky Question # 39:

I am the operations manager for a food distributor.  One of our other managers, a long-term employee, was recently demoted to a position that places him in frequent contact with our customers.  He was unhappy about that demotion and has filed a charge of age discrimination with the EEOC.

One of our customers has now called to complain that this employee is constantly bad-mouthing the company, saying that he has been mistreated by senior management, and talking about the “$10 million lawsuit” he plans to file.  Given the damage this kind of talk can do to customer relations, we fired the employee.

Our ex-employee has now sued our company, not only for age discrimination, but also for retaliating against him for exercising his statutorily-protected rights.  Should we worry about these claims? Answer→

Bogus Lawsuits, Quirky Question # 34

Quirky Question # 34:

We continue to confront periodically lawsuits from former employees that are utterly frivolous.  Some of the claims make you shake your head in disbelief.  We’d like to file malicious prosecution lawsuits against the individuals who file these bogus claims. Are there any downsides to this approach?  Could someone argue that the lawsuits we are contemplating are “retaliatory?” Answer→