When a Charging Party is Still Your Employee

You Asked.BlogLast year, an employee made an internal complaint of discrimination. We investigated immediately and determined that the employee’s allegations were correct. We terminated the offending supervisor, conducted training, and reaffirmed our dedication to EEO principles. Nonetheless, the employee filed a charge of discrimination with the local EEOC office. 

It has been nearly a year now, and the EEOC has not concluded its investigation. The employee was a good performer before all of this started, but now is tardy and insubordinate, and generally seems to be daring us to fire him. What can we do?

This is a nightmare situation for employers, and while rare, it does happen. In a situation where wrongdoing did occur, employees often conclude that they have just been handed a winning lottery ticket. They also seem to receive advice that being terminated will make their claim even better. In reality, they are usually disappointed. 

In theory, this employee is subject to termination just like anyone else. But in practice, terminating him will give rise to a retaliation claim.

In order to successfully terminate this employee, you will need to be able to show that anyone who engaged in the same type of conduct would have been terminated. That sounds simple enough, but if you terminate him for tardiness and insubordination and he claims retaliation, the EEOC will want to see records of other people terminated for tardiness and insubordination. 

Let’s say your records show employees who were terminated for tardiness, but they had far more instances of tardiness than the employee in question. You also find records of a couple employees terminated for insubordination, but in those cases, the insubordination was obviously worse than in the current case. Your argument that this employee’s combination of tardiness and insubordination supports the termination may not convince the EEOC investigator, who believes you are holding this employee to a higher standard than others.

Planning on documenting this employee’s every transgression until you have enough to fire him? You had best be documenting every other employee’s conduct to the same extent. This tactic is not new to your friendly EEOC investigator. Don’t do it. 

Certainly there are things this employee could do that would justify firing him on the spot. Acts of violence would do nicely. But for nuisance actions that would not clearly result in any employee’s termination, forbearance may be the best strategy.

Of course, you will have called MSEC at the first sign of trouble, and we will help you with every annoying step until the problem is resolved. 

Send your questions to cgraves@msec.org. Please tell us if you would prefer your identity not be mentioned in our answer.