Doesn’t it seem like once an employee complains about harassment or discrimination they enter some kind of “employee protection program,” much like the witness protection program? They become practically untouchable because employers are so afraid of being hit with retaliation lawsuits. You may have legitimate business reasons—such a restructuring—to eliminate a complainer’s job, just first sit back and think how it will look to a jury ...

Case in Point: Jessica Magyar, a 22-year-old college student, worked quarter-time as a scheduler for an Indiana hospital. She was job sharing a part-time position with another worker. Jessica received no benefits, had no steady hours and worked on call.

On several occasions, a 52-year old male co-worker sat down in her lap and whispered offensive words in her ear. Magyar complained to her immediate supervisor but refused to file a formal complaint. The supervisor verbally warned the male employee to stop the boorish behavior. Magyar complained to higher-ups that the supervisor didn’t handle the problem, so the supervisor issued a second warning.

The following month, the supervisor decided to merge the two quarter-time positions into a single part-time position with benefits. Magyar was unable to work that many hours because of college. So the other job-sharing employee was offered the part-time position. Magyar’s supervisor said he’d call her for shift work, but never did. Eventually she was terminated for not working sufficient hours.

Magyar sued, claiming retaliation for her sexual harassment complaint. (Title VII of the Civil Rights Act of 1964 not only prohibits sexual harassment, in bans retaliation for exercising your rights under the law.) The hospital argued that the restructuring was a business decision and unrelated to Magyar’s complaint. (Magyar v. St. Joseph Reg’l Med. Ctr., 7th Cir., 9/12/08).

What happened next and what lessons can be learned?

Have you ever flat-out fired an employee for poor performance without any warning? If employees are “at-will,” you can fire them for any reason or no reason at all, as long as it’s not for a discriminatory or illegal reason. Does that allow you to drop the guillotine without guilt? As a new court ruling shows, supervisors should resist that urge (and give the person a chance to shape up) if that employee recently voiced a complaint about discrimination.

Case in Point: Michael Bruno worked as the director of hospitality for a Mississippi casino for 11 years. Bruno had been looking to hire a buffet manager and eventually located someone who he thought was highly qualified. Bruno told his supervisor, who immediately rejected the applicant as “too old,” saying the casino didn’t need “another squatter,” referring to a 50-year-old employee the supervisor deemed as unproductive.

Bruno argued that it “wasn’t right” to reject the candidate solely on age, noting that the candidate was “very qualified.” Regardless, his supervisor tossed the application back at Bruno shouting “too bad."

Within less than two weeks of his complaint, Bruno was fired without warning. He was only given vague reasons, including that he had “substandard” kitchen cleanliness and managerial performance. Despite the fact that the casino had a progressive disciplinary policy, it was ignored in Bruno’s case. He wasn’t given any chance to correct his supposed mistakes.

Bruno shot off a retaliation lawsuit under the federal Age Discrimination in Employment Act (ADEA) and state law. He claimed his firing was in retaliation for opposing his supervisor’s discriminatory hiring decision. The casino, however, argued that it had a nondiscriminatory right to fire Bruno for poor performance. (Bruno v. RIH Acquisitions MS 1 LLC d/b/a Bally’s Resorts, N.D. Miss 1/14/08).

How did this case end…and what lessons can be learned?