Does Employee’s Falsification of Employment Application Automatically Defeat Retaliation Claim?

Posted on August 30, 2017 by Elaine I. Hogan

The Situation: An employee complains that he is being harassed based on his sexual orientation and the fact that his partner is African American. Not long after he lodges this complaint, the employer discovers that although the employee stated on his job application that he graduated from community college, he had not actually graduated, but only took a number of classes. After the employee is terminated, he brings a claim of retaliation under Title VII. Can the employer get the claim thrown out on the grounds that the employee falsified his employment application?…


Is it Retaliation to Fire A Supervisor For a Fabricated Sexual Harassment Report?

Posted on June 28, 2017 by Elaine I. Hogan

The Situation: One of your supervisors reports that another employee has been sexually harassing several women working under him. Your HR director interviews each of these women and none back up this story. You then terminate the reporting supervisor based on her false report. Is this retaliation in violation of Title VII?…


FMLA Retaliation Claim Even Where Actual Decisionmaker Didn’t Know About Use of Leave?

Posted on May 3, 2017 by Elaine I. Hogan

The Situation: An employee requests and is approved for FMLA leave based on a mental health condition.  While she is out, she accumulates a backlog of work. According to her supervisor, after she returns, she continues to have performance problems, including not meeting certain metrics and otherwise just not meeting his standards.  Based on a recommendation from her supervisor, upper management decides to demote the employee. When performance issues continue, the owner decides to fire her, without any knowledge of her use of FMLA leave. Can this employee still make a case for retaliation under the FMLA?…


Calling Your Boss a Nasty Motherf**ker is Protected Activity?

Posted on April 26, 2017 by Elaine I. Hogan

The Situation: An employee has a problem with the way he has been treated by a supervisor and decides to share his disdain for him on Facebook—calling the supervisor a “nasty motherf**ker” and also saying “F*ck his mother” and “f*ck his whole family!”  Is this not a proper basis for termination?…


Despite Serious Documented Performance Issues, Reference to Medical Leave May Mean FMLA Retaliation Claim

Posted on March 22, 2017 by Elaine I. Hogan

The Situation: An employee begins working as a sales consultant and from the beginning, has serious performance issues. She is given a number of warnings and even placed on an improvement plan. After she receives a final warning threatening termination if her performance does not improve, she submits a request for FMLA leave for some necessary surgery. The employer grants the request, but then terminates her soon after her return when it is clear her performance is not improving. But in the email sent up the chain recommending termination, the supervisor references the request for medical leave. Is this enough to support a retaliation claim, despite the clear (and well-documented) performance issues?…


Firing Six Weeks After Charge Enough to Show Retaliation?

Posted on March 8, 2017 by Elaine I. Hogan

The Situation: An employee files an EEOC charge, claiming she was discriminated against based on her race. Because of some ongoing performance issues, you put her on a performance improvement plan three weeks later. Following the issuance of another written warning, you decide to terminate her, about six weeks after her charge was filed. Can she bring a retaliation claim based on the timing alone?…


Can Firing an Employee for a False Sexual Harassment Claim Be Considered Retaliation?

Posted on February 15, 2017 by Elaine I. Hogan

The Situation: An employee lodges a number of complaints against a certain supervisor, claiming that he has made some offensive and inappropriate remarks of a sexual nature.  You interview some of the other employees who were purportedly present when these statements were made and none of them back up the complaining employee’s story. The supervisor also denies making the statements. You terminate the employee who made the complaints on the grounds that she has intentionally falsified a claim of harassment, in violation of your anti-harassment policy.  Can you face a claim of retaliation?…


Emotional Distress Damages Allowed in FLSA Retaliation Claim?

Posted on December 28, 2016 by Elaine I. Hogan

The Situation: An employee claims that not only was he not properly paid overtime owed to him, but that when he complained about it, his employer retaliated against him—can he really claim damages based on pain and suffering?…


Supervisor Faces Individual Liability Under the FMLA

Posted on September 14, 2016 by Elaine I. Hogan

The Situation: After an employee at a public agency takes a number of weeks of approved FMLA leave, a supervisor begins criticizing her performance harshly (and at times, unjustifiably).  The supervisor ends up giving her a written warning for engaging in conduct that is not generally even disciplined.  When the employee later makes another mistake and is terminated, she brings a number of claims, including a claim of FMLA interference and retaliation.  Not only does she assert claims against the employer, but also against the supervisor.  Can the supervisor be held individually liable?…


Retaliation According to the EEOC

Posted on September 7, 2016 by Elaine I. Hogan
Posted in Retaliation

The Situation: Retaliation claims continue to be a favorite of employees and are the most frequently alleged bases for discrimination.  Employers should be aware of the ever present risks of such claims.  So what is the EEOC’s take on what constitutes retaliation?…

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