Issues in Employment Law

October 2002

Discharging an employee for engaging in a protected activity (such as filing a safety complaint with a government agency) is grounds for discrimination liability by retaliation.

To protect themselves from retaliation liability, employers should document all evidence of warnings given to employees or meetings regarding an employee's poor performance or attitude. Absent such evidence, any disciplinary action taken against an employee following the employee's involvement in a protected activity will likely be seen by the court as pretextual. Please consult us with any questions regarding employees that have engaged in protected activities.

In Gabel Stone Co. v. Federal Mine Safety and Health Comm'n (No. 01-4016), the Eighth Circuit Court of Appeals found the employer liable for such retaliation, citing evidence of the supervisor's threats of firing the employee who filed a safety complaint with the Mine Safety and Health Administration. The court noted there was no documented evidence of warnings or counseling of the employee's poor behavior or attitude, holding that the employer's stated reasons of poor behavior and attitude were simply pretexts for the supervisor's retaliatory actions. The court not only awarded back pay to the employee, but also assessed a $5,000 civil penalty on the employer.