Here is a scenario we commonly face with clients: A poor-performing employee has not quite reached the point of termination. Just prior to a final decision on her employment, she goes to the Human Resources Department to complain about discrimination or harassment. The employee’s manager wants her gone, but HR is hesitant to pull the trigger because there has not been much in terms of disciplinary warnings or counseling. In order to placate the manager, HR tells him to begin closely watching and documenting the employee’s performance issues, which results in a termination decision a few weeks later. When the employee claims retaliatory discharge, the employer cites the new documentation as the basis for its defense to those claims.

A similar scenario recently resulted in the Sixth Circuit Court of Appeals affirming a mid-six-figure jury verdict against an employer deemed to have fired the employee for retaliatory reasons. In Hubbell v. FedEx SmartPost, Inc., the plaintiff alleged that a new manager gave her a poor performance review and demotion based on his belief that women were not suitable for managerial roles. She filed internal complaints and an EEOC sex discrimination charge. She then claimed that after making these complaints, she became subject to intensive scrutiny of her work, resulting in 15 write-ups leading to her termination several months later.

The Sixth Circuit found that the jury had an adequate basis for the retaliation verdict. The heightened level of scrutiny of her work and the resulting disciplinary actions and termination were close enough in time to her complaints to support the retaliation finding. In affirming the verdict, the court also noted the apparent lack of any actual internal investigation of the plaintiff’s sex discrimination complaint.

Does this decision mean that employers are helpless to deal with performance or disciplinary issues once an employee has claimed discrimination? The answer is no, but the employer needs to be smart and deliberate about how it measures the employee’s performance. Moving from no formal review of performance to an intensive, constant management of work issues calls into question the employer’s motivation for the decision. Instead, the employer needs to use its regular employee evaluation and discipline policies and procedures to deal with these issues. The complaining employee should be treated no differently than other employees who experience performance issues. Regardless of the manager’s pressure, HR needs to take the time to conduct a fair and standard evaluation of the employee’s work before reaching a termination decision.

Of course, this entire issue can be avoided if managers regularly evaluate and provide feedback to employees whom they supervise. By showing consistent evaluation and discipline prior to the time the employee complains about his or her treatment, the employer can rebut the claim that a subsequent termination is made in retaliation for that complaint.