Thus, if an employee makes a complaint, and is discharged, demoted, transferred, etc., within a few hours or days of the complaint, courts strongly consider the time factor to show the causal link between the complaint and the adverse action. The courts will look at the facts of each and every case to decide whether sufficient time has passed to determine whether retaliation has occurred.
Another factor the courts will consider is the employee’s past performance record. If he or she has been a poor performer for some time without warning or discharge, but is adversely treated after complaining of discrimination or harassment for events that previously did not merit a warning or other adverse action, the courts will most likely determine that retaliation was at least part of the motive for the employer’s decision. This is het one more example why managers should practice good paperwork procedures by noting all verbal performance discussions in a personnel file, and issuing written warnings where appropriate. Otherwise, the employer can be faced with a longtime employee with no documentation, who all of a sudden has a huge paper trail after the discrimination complaint was lodged. Similarly, discipline given to other employees who have not lodged complaints will be examined. If it is determined that the complaining employee was warned for things that the non-complainers were not, this also shows improper motive for the adverse action to the complaining employee.
To voice retaliation claims, employers should be careful to only discipline employees consistent with employment policies or practices. The employers need to be careful here because they cannot automatically refer to rules in a handbook, for example, when other employees have been disciplined (or not) in a manner inconsistent with the handbook. An easy example of this is disciplining a complaining employee for excessive lunch breaks, because there is a handbook rule against it, when he or she was not so warned in the past when long lunch hours were taken, or when no other employees have been disciplined for taking long lunch hours.
Another way to protect the company from a retaliation claim is to keep the discrimination complaint confidential. The less people who are aware that a complaint has been made, the easier it will be to show that their actions were not retaliatory. In this regard, retaliation claims have been lodged against employers because it became well-known that a complaint had been registered, which caused co-workers to ostracize the complaining employee and or even confront the employee about it.
Just because an employee has registered a complaint of discrimination or harassment does not mean that the employee need not follow the company’s rules. However, things overlooked in the past for that employee, or his or her co-workers, would limit the employer’s ability to use the violation as a dischargeable offense.