- An African-American welder was fired for falsifying time records, not in retaliation for complaining about race-based harassment, the 5th U.S. Circuit Court of Appeals ruled (Richards v. Lufkin Industries, LLC, No. 19-40340 (5th Cir. Feb. 10, 2020).
- Guy Richards alleged that a white supervisor and some white co-workers routinely used racial slurs when addressing him. He reported the harassment to senior managers and to HR. Following an investigation, the supervisor received a five-day suspension, and Richards was transferred to a lateral position in a different location. He eventually filed a bias charge with the U.S. Equal Employment Opportunity Commission (EEOC) and was fired about a year later after a separate investigation allegedly revealed he had falsified time records. He sued, alleging discrimination and retaliation. A jury entered a verdict in the employer's favor on the discrimination claim, and a district court granted summary judgment for the employer on the retaliation claim.
- In considering an appeal of the lower court's summary judgment, the 5th Circuit concluded that "Richards cannot make any showing that his termination was motivated by a desire to retaliate against him for his protected activities." He offered no explanation for the timesheet discrepancies when he was asked about them, and other employees — including white employees — were also fired for filing false timesheets. Additionally, said the court, about two years elapsed between his internal complaint and his termination, and about one year between his EEOC filing and his termination. "While not always determinative," said the court, "the lack of temporal proximity between Richards’ termination and these two protected activities" undermined any causal connection between them.
In this case, as the court pointed out, there was a fairly lengthy gap between the protected activities and the adverse action. But even when the events happen closer together, employers that can appropriately justify the discipline or discharge may be in a good position to defend themselves.
Lowe's, for example, recently defeated a worker's allegations of disability and age bias because it showed legitimate business reasons for the employee's transfer to a new store and investigations into his conduct. Similarly, the U.S. Forest Service was able to show in a recent lawsuit that a worker's reassignment was due to budget cuts rather than bias.
HR can work to ensure policies are applied consistently, and that similar infractions result in similar discipline. Engaging in protected activity, such as making a harassment or discrimination complaint, doesn't insulate an employee from legitimate discipline. However, experts caution that HR may want to carefully review plans to discipline an employee who recently engaged in protected activity to avoid the appearance of bias or retaliation.
Additionally, experts say, if an investigation reveals that an employee has been the target of harassment or discrimination, HR should ensure that remedial actions (such as a transfer to separate the perpetrator from the victim) are not conducted in a way that suggests retaliation against the complaining employee.