Can I fire an employee who is threatening to sue us for sexual harassment or discrimination? [As of 2001]

Unless the employee has committed some other misconduct that is unrelated to the charge of discrimination, terminating employment under these circumstances may be looking for trouble.

Federal law prohibits an employer from discriminating in the workplace on the basis of sex. The most important law prohibiting such conduct is Title VII of the Civil Rights Act of 1964. Under this law, race, color, religion, sex, or national origin can’t be used as a basis for limiting or depriving a person of opportunities in the workplace. Title VII covers businesses with 15 or more employees.

Title VII also protects employees from retaliation. Employees who file charges of discrimination or harassment with the Equal Employment Opportunity Commission (EEOC), or are involved with such charges (e.g., they serve as a witness for another employee who has filed a charge), are protected from retaliation by their employers. This protection applies to employees who:

• File a charge or lawsuit;
• Have indicated an intention to file such a charge or claim;
• Testify on behalf of another employee who has filed such a charge or claim;
• Refuse to testify for an employer in such a case, or;
• Have filed charges against other employers.

Such employees are protected from any adverse actions against them by their employers, including:

• Demotion;
• Detrimental transfer;
• Loss of pay;
• Loss of assignments; or
• Termination.

Employees may succeed with retaliation claims even when the underlying discrimination or harassment claim is found to be baseless.

However, employees aren’t protected from all conduct that occurs during a sexual harassment investigation. Employers are allowed to discipline or terminate an employee who lies or commits other misconduct during an investigation.

You may want to consult legal counsel prior to terminating the employee. In 1999, almost 20,000 charges of retaliation were filed with the EEOC. In fact, from 1992 to1999, retaliation charges increased by 43.7% — making it the fastest growing type of charge filed with the EEOC.