- A Michigan auto parts manufacturer supervisor was fired for her "harsh management style," not her complaints about alleged race-based hiring practices, the 6th U.S. Circuit Court of Appeals ruled (Kenney v. Aspen Technologies, Inc., No. 19-1027 (6th Cir. July 6, 2020)).
- Karen Kenney alleged in a lawsuit that Aspen Technologies fired her in retaliation for her complaints about discriminatory hiring practices. In speaking to an executive about the company's difficulty in obtaining employees, Kenney said she asked why the company wasn't sourcing candidates from nearby Detroit and Flint, Michigan, and was told that another executive "didn't like that demographic." The executives denied that she complained about discrimination, however, and one testified that Aspen's recruitment was conducted online, ruling out geographically motivated discrimination. Instead, the employer said it fired her because "dozens of employees" named her as their reason for leaving, and two formal complaints were made against her for mistreating employees, according to the court's opinion.
- The district court granted Aspen Technologies summary judgment, which the appeals court affirmed. Noting that Kenney was fired about two and a half months after her complaint about Aspen's alleged discriminatory hiring practices, the 6th Circuit said the 75-day delay between her protected activity and the adverse employment action was not enough to prove retaliation. The court also noted Kenney had not disputed that complaints were made about her. "Aspen produced an above-board reason for firing her: the attrition rate doubled under her supervision, during a time when the company needed to increase its workforce to keep up with its contracts," the appeals court said.
Many of the nation's employment laws — Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the Americans with Disabilities Act and the Occupational Safety and Health Act — forbid employer retaliation against workers who engage in protected activities such as complaining about alleged violations.
Protected activity doesn't insulate workers from unrelated discipline but timing alone can establish a prima facie case of retaliation, attorneys previously told HR Dive. A short period of time between a protected activity and an adverse employment action can create an inference of retaliation. For example, the 3rd Circuit allowed a Philadelphia fitness instructor to move forward with her complaint that she was fired shortly after she informed company executives that she filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). The court said her allegation was supported by the fact that "only hours" elapsed between the employer finding out about her protected activity and her termination.
On the other hand, one year between a complaint and firing didn't prove retaliation, the 5th Circuit recently ruled. Similarly, the 11th Circuit said a termination that occurred eight months after filing an EEOC complaint wasn't retaliation.
As this case and many others illustrate, while timing can be an issue, employers can undertake adverse employment action following protected activity if based on a legitimate, nondiscriminatory reason. Thorough documentation can provide a strong defense, employment attorneys say.