This company fired a man for soliciting prostitutes at work. They will probably lose the case.

To be clear, you can fire someone who solicits prostitutes while you're on time. This is certainly gross misconduct, and you are free to fire that person.

So why did the Third Circuit Court of Appeals rule in favor of a man who (allegedly) did exactly that?

One word: retaliation.

The court found that Joseph Canada had enough evidence for a lawsuit to determine whether the company, Samuel Grossi and Sons, Inc., did not fire him for soliciting prostitutes, but retaliated for filed complaints. Here's what happened and what you can do to avoid it.

Don't look for an "excuse".

Pretext is "a reason given to justify an action which is not the real reason". In that case, Canada complained that Grossi and Sons engaged in racial discrimination, had a hostile work environment based on race, and that the company violated both the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

Then he went on vacation.

While he was gone, the company did the following four things:

Cut the padlock from his locker and search it. (They asked for the necessary to move the locker.) He found his cell phone, claimed it might be a company-issued phone (but didn't check), and the HR manager found the password in one only guess. I dug through a year of text messages and found the offending messages. The timestamps indicated he was on the clock when he texted the prostitutes. Canada fired.

It's pretty much a textbook "pretext". The court found that

The evidence here clearly supports the conclusion that Grossi was looking for something that would justify ending Canada and that she undertook this search because of Canada's complaints of discrimination.

In other words, they never would have cut his padlock, searched his locker, hacked into his phone, and read a year's worth of text messages if they hadn't tried to find a reason for it. dismiss.

Retaliation is illegal

This case did not determine whether or not Grossi engaged in discrimination or violated the ADA or FMLA. He found that Canada had enough evidence to accept his claims that the dismissal for inappropriate behavior on the phone was just a pretext. All of this research was the company fighting back against Canada.

Labour lawyer and partner at Fischer Broyles, Eric Meyer, explains:

Employers cannot invent ways to unearth reasons for dismissing an employee who has engaged in a protected activity and avoid repercussions based on a "later incidental discovery of grounds for dismissal".

You can't look for another reason, because you want to avoid complaints. The claims don't even have to end up being legitimate.

A court may find that Grossi did not discriminate or violate the ADA or FMLA, and the company could still be required to pay Canada compensation for retaliation.

Remember this: Retaliation claims not only make up the majority of Equal Employment Opportunity Commission (EEOC) claims at 56%; these are "generally the costliest claims for employers".

How to deal with complaints of discrimination

When an employee comes to you with a discrimination, harassment, or other complaint that, if true, would violate the law, you investigate that complaint and take action...