An employee files a harassment claim against her direct supervisor. Sometime later, before the supervisor has been advised of the employee's claim, the employee commits a fire-able offense. The supervisor wishes to terminate the employee. Can you fire the employee without concern over a retaliation complaint, since the supervisor didn't even know about the employee's harassment allegations?
The answer, as you may expect, is maybe, maybe not. There are a number of factors that a court would consider when faced with a retaliation claim, were you to choose to fire the employee. Unfortunately for you, the fact that the supervisor did not know about the claim is not enough to prove that termination was not retaliatory. First, the court would look at the original harassment complaint to see if it had merit or at least some chance of success. Second, the court would consider the amount of time which had passed between the harassment complaint, the employee's so-called terminable conduct, and the termination itself. Of course, a termination will be more suspect the closer in time it takes place to the harassment complaint. An action is more likely to be considered "retaliatory" if it took place in temporal proximity to the underlying action you're accused of retaliating against.
Finally, the court would consider the employee's conduct which you claim led to the termination. Specifically, they would ask what has happened when other employees committed this same offense. Were they all fired on the spot? Or were other employees let off with a warning? If other employees who engaged in the same activity were not fired but this employee was, then your termination looks much more like a retaliation.
The best course of advice, therefore, is to seek legal advice as soon as feasible - prior to termination if this is possible. If you have already terminated the employee and are concerned that a retaliation claim may be pending, you should bring this information to your attorney's attention as soon as possible. But if you are wondering whether a supervisor's lack of knowledge of a harassment claim would insulate your practice from allegations of retaliation, the answer is no. As with any legal incident, you should tread carefully in order to ensure that you choose the safest route for your business and for all of your employees.
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Frequently Asked Questions
Q: Can I fire an employee who has filed a harassment claim against their supervisor if the supervisor is unaware of the claim?
A: Maybe, but there are factors to consider. The supervisor's lack of knowledge about the claim does not automatically protect against retaliation allegations.
Q: What factors would a court consider in a retaliation claim regarding termination after a harassment complaint?
A: Courts would examine the merit of the harassment complaint, the timing of the termination in relation to the complaint, and how similarly situated employees were treated in similar situations.
Q: How does the timing of the termination affect the likelihood of a retaliation claim?
A: Terminations closer in time to the harassment complaint are more likely to be viewed as retaliatory by the court.
Q: What should I do if I'm considering terminating an employee who has filed a harassment claim?
A: Seek legal advice before making any decisions. If termination has already occurred and there are concerns about retaliation claims, inform your attorney promptly for guidance on next steps.
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About Ali Oromchian, Esq.
Your Healthcare Lawyer
Ali Oromchian, JD, LL.M., is a leading legal authority in dental law and the founding attorney of Dental & Medical Counsel, PC, with over two decades of experience. His deep connection to dentistry comes from his wife's nearly two-decade-long career as a pediatric dentist.
This personal insight fuels his dedication to empowering dentists to navigate their legal challenges and achieve their practice goals. In doing so, Ali has helped thousands of doctors open their practices while maintaining legal compliance.
Ali is frequently quoted and contributes articles to dental publications, including the California Dental Society, Progressive Dentist, Progressive Orthodontists, Dentistry Today, Dentaltown, and The New Dentist magazines, further showcasing his commitment to the dental community.
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