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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