Can we fire an employee who complains about discrimination and is dead wrong?

I mean, sure. It’s a free country. This isn’t Communist Russia.

But if your company is concerned about a subsequent retaliation claim, read on.

Today’s lesson comes courtesy of this Fifth Circuit Court of Appeals decision. The plaintiffs brought gender discrimination (equal pay) and retaliation claims after the defendants terminated their positions as part of a university-wide consolidation.

On February 15, 2019, one of the plaintiffs emailed one of the defendants, stating why she believed they discriminated against them. Among other things, she wrote that salary adjustments were “overdue and necessary to ameliorate an environment…that has not seemed historically to view equity as potentially a gendered issue.”

As it turns out, she was wrong; the defendants did not discriminate against the plaintiffs.

But here’s the thing.

A viable retaliation claim starts with the plaintiff demonstrating that she engaged in protected activity. To qualify as a protected activity, an employee can oppose an employer’s practice that she reasonably believes to be unlawful — even if the defendant never violated the law.

In this case, the appellate court reasoned that even though the allegations in the email proved false, it did not negate the plaintiff’s reasonable belief, based on these facts, that they received discriminatory wages on account of their gender. Therefore, the plaintiffs had the makings of a possible retaliation claim.

Can an employer fire someone for making an UNREASONABLE complaint of discrimination? I get this question occasionally. Title VII doesn’t prohibit it. (YMMV under state law.) But proving the employee complained in bad faith isn’t easy.

Does this mean employers should think twice about terminating employees who complain about discrimination, right or wrong?

It could be time to hit the pause button. But a discrimination complaint isn’t a free pass to shirk job responsibilities or violate work rules. So, employers who excel at documenting infractions are in a better position to terminate without risking a viable retaliation claim.

Remember that a successful retaliation claim requires the plaintiff to demonstrate that the employer’s legitimate reason(s) for terminating their employment was a pretext for retaliation. That requires something more than the employee’s say-so. If the employer has legitimate grounds, an earlier complaint of discrimination does not convert the termination decision into retaliation.