Can an employee with performance issues “insulate” him/herself from termination by alleging harassment or discrimination in the workplace?

Maybe!  The U.S. 6th Circuit Court of Appeals recently allowed a retaliation claim to proceed to trial by an employee who was asked to resign or be terminated one day after she made a sexual harassment report against her supervisor.

The employee had been placed on a performance improvement plan in November, 2010 and was issued a final warning 6 months later when she was placed on a 30 day action plan to demonstrate improvement.  Two weeks later the employee reported to a human resources representative that her supervisor had been making sexual comments about her.  The HR rep contacted the supervisor about the allegations. The next day the supervisor told the employee to resign or be terminated due to poor performance.  The employee made a retaliation report to HR and resigned.  She then sued, alleging discrimination and retaliation and made a constructive discharge claim.

The trial court dismissed the employee’s claims, but the 6th Circuit reversed, holding that the close proximity in time between the constructive discharge and the harassment complaint was enough to establish retaliation.  The Court recognized the right of employers to carry out disciplinary actions even though an employee is alleging discrimination, but noted that, in this case, the employee was terminated before her 30 day action plan was completed.

The lesson to be learned:  An employer who is considering terminating an employee who has recently engaged in protective activity (such as a charge of discrimination or harassment) should be sure that the termination is consistent with a previously established timeline for improvement known to the employee.  Don’t skip a stage in a progressive disciplinary policy.