Ask the Legal Expert about... EEOC lawsuits

John Durso, Esq. Nixon Peabody LLP
John Durso, Esq. Nixon Peabody LLP

We fired a CNA for poor work habits. Period. Now, however, she's suing and claiming discrimination because some coworkers apparently made a few wisecracks about her and her religion. We fear an EEOC lawsuit. What can we do?

The employer may be found liable for discrimination or wrongful termination based upon the above scenario. You should be prepared to argue coworkers' statements or actions (assuming the coworkers are not supervisors) do not represent you as the employer, and that you were not aware of or condoned these actions.

If the coworkers are supervisors of the claimant employee, the employer may be deemed liable.

The employer should advise all employees in the workplace that it is against company policy and inappropriate for them to make statements or take actions which are discriminatory or highlight bias by creating a hostile environment against a person who is a protected category.

Some cases have found an employer was liable for sex discrimination when an employer allowed its non-supervisory employees to create a hostile work environment.  

The employer should discipline the non-supervisory co-workers whose wisecracks could be determined to create an environment or whose actions themselves may be discriminatory. Otherwise, non-enforcement of the company policy or failure to reprimand those actions could be interpreted by a judge or jury as tacit approval.

Finally, the employer must be prepared to advise the trier of fact (EEOC or a court) of all of the valid termination reasons. Hopefully, all of the “bad habits” were properly documented in written performance reviews or disciplinary actions against the employee at the time of her actions.