Timing is Everything!!


  • By: Ruth Evans, Owner of The Evans HR GROUP

Retaliation claims are on the rise. Of the 99,412 new charges of discrimination filed with the Equal Employment Opportunity Commission (EEOC) during their 2012 fiscal year, 37,836 or 38.1% of all charges were for retaliation claims. California’s share of these claims totaled 7,399, and does not include retaliation claims filed directly with California’s Department of Fair Employment and Housing

Often times an employer takes what may be a legitimate employment action, but the timing of that action results in a claim of retaliation. I know the words “yes, you can…..but your timing doesn’t work” drives an employer to drink (well some employers) when they want to terminate or take some other adverse employment action against an employee. But, really, the old adage “timing is everything” is important to consider.

Take the case of Westendorf v. West Coast Contractors of Nevada. Ms. Westendorf complained to the company president about inappropriate comments made by a co-worker that included referring to her job duties as “girly work”, talked about a vendor’s chest size, suggested to her that she wear a French maid’s costume while cleaning the trailer and more. The president investigated and took action including disciplining the supervisor for not stopping the co-worker’s misconduct. After that, Ms. Westendorf felt that the supervisor was picking on her work and was putting her down in front of subcontractors. Employees reported an incident involving Ms. Westendorf and her supervisor to the president, and the president lost his cool, told Ms. Westendorf because she had a problem getting along with her supervisor she needed to collect her things and leave. (Well…it is never that simple when these issues arise, but you get the drift.)

Ms. Westendorf sued in federal court claiming sexual harassment based on a hostile work environment, and claimed that her termination was related to her prior complaints, and was retaliation. The trial court ruled in the employer’s favor. When the appellate court heard the case, they ruled that the inappropriate comments were not severe and pervasive, agreeing with the trial court that Ms. Westendorf was not subject to a hostile work environment. However, they left the issue of retaliation open. The court said, “Even though we have held that the evidence did not support Ms. Westendorf’s sexual harassment claim, we think that it could support a reasonable belief that she was subjected to actionable sexual harassment, and that she had such a belief. In such circumstances, her complaints about the conduct would be protected activity.” And, taking action against an employee who was involved in protected activity could be considered retaliation. The court left it to a jury to decide on the issue of retaliation.

As employers, we are subject to an enormous number of federal and state regulations, and retaliation claims can arise under any one of them when an employee can demonstrate that a protected activity under that statute resulted in an adverse employment action.

So, next time you are ready to take an adverse action against an employee, stop and think before you act.



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