OREGON: Discipline following harassment complaint is always risky

Firing an employee just two days after he’s complained of sexual harassment is still a surefire way to get sued, as a recent Ninth Circuit case out of Oregon reaffirmed. A production worker for Entek International claimed to be the victim of harassment on the basis of his sexual orientation. When the stress from the harassment became too great, he called in to let Entek know he was taking the day off work. Entek recorded this day as a “no call/no show” day because he did not call in at least one hour prior to his shift, as Entek’s policy required. When he returned to work the next day, he complained to Human Resources of the harassment. Two days later he was fired for his no call/no show. When he sued for sexual orientation discrimination the court agreed that the proximity in time of his complaint to his termination was suspect, and may be evidence of retaliation for his complaint to HR (Dawson v. Entek International, 9th Cir, Jan. 2011).

Tips: While making a discrimination complaint does not insulate an employee from discipline for failing to comply with workplace rules and policies, you should be extra careful in these kinds of situations. Remember to contact your Vigilant staff representative before taking disciplinary steps. We can help you safely navigate between the employee’s protected conduct and your need to enforce your workplace policies.