People don’t like to get fired from their jobs. Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination. As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.
This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits. Those cases focus on the concept of causation. As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint. In most cases, close timing between the complaint and termination is sufficient to establish causation. But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation. Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.” Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).
In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim. The Eleventh Circuit provides the following rationale for that rule: “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.” Id.
As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision. Additionally, employers should also proceed cautiously any time an employee complains about discrimination. Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.