To be clear, you can fire someone who solicits prostitutes while on the clock. That certainly falls under gross misconduct, and you’re free to terminate this person.
So, why did the Third Circuit Court of Appeals rule in favor of a man who (allegedly) did just that?
The court concluded that Joseph Canada had enough evidence to have a trial to determine if the company, Samuel Grossi and Sons, Inc., didn’t fire him for soliciting prostitutes but retaliated for filing complaints. Here’s what happened and what you can do to prevent this.
Don’t go searching for “pretext.”
Pretext is “a reason given in justification of a course of action that is not the real reason.” In this case, Canada complained that Grossi and Sons engaged in race discrimination, had a race-based hostile work environment, 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 off his locker and searched it. (They claimed the needed to move the locker.)
- Found his cellphone, claimed it might be a company-issued phone (but didn’t check), and the HR manager figured out the password in one guess.
- Searched through a year’s worth of text messages and found the offending messages. Time stamps indicated he was on the clock when he texted the prostitutes.
- Fired Canada.
This is pretty much a textbook “pretext.” The court concluded that
The evidence here clearly supports a conclusion that Grossi was looking for something that would justify terminating Canada and that it undertook that search because of Canada’s complaints of discrimination.
In other words, they never would have cut off his lock, searched his locker, hacked his phone, and read a year’s worth of text messages if they weren’t trying to find a reason to terminate him.
Retaliation is illegal
This case didn’t determine whether or not Grossi had engaged in discrimination or violated the ADA or FMLA. It established that Canada had enough evidence to take his claims that terminating him for inappropriate phone behavior was simply a pretext. All this searching was the company retaliating against Canada.
Employment attorney, and partner at Fischer Broyles, Eric Meyer, explains:
Employers cannot invent ways to dig up reasons to fire an employee who has engaged in protected activity and avoid repercussions based upon a “subsequent fortuitous discovery of grounds for termination.”
You can’t go searching for another reason because you want to avoid claims. The claims don’t even have to end up being legitimate.
It’s possible that a court could find that Grossi did not discriminate or violate ADA or FMLA, and the company could still have to pay a settlement to Canada for retaliation.
Remember this: Retaliation claims not only make up the majority of Equal Employment Opportunity Commission (EEOC) claims at 56 percent; they are “ordinarily the most expensive claims for employers.”
How you should handle discrimination claims
When an employee comes to you with discrimination, harassment, or another complaint that, if true, would violate the law, you investigate that claim and act on that.
The law is actually pretty forgiving–if you investigate and fix any problems as soon as possible, the employee usually can’t even sue. But if you know, or should know, about an issue and ignore it, you’re on the hook.
Or, like in this case, you search for a way to punish the complainer, and you can end up with a retaliation charge.
To be clear, if the company investigated Canada’s claims, found them false, and still did this to him, they could still lose in court because retaliation is illegal.
Never punish anyone who complains in good faith. (If you find someone complaining purely to get someone else in trouble and they knew there was no problem, that’s not a good-faith complaint.) Don’t transfer, demote, terminate, or remove the best projects from a complainer. That will land you in hot water.
And while Canada shouldn’t have solicited prostitutes while on the clock, the company would never have known if they hadn’t chosen to retaliate against him.
It’s unlikely that we will see the outcome of this case. Most likely, Grossi will settle out of court. But don’t let that potentially hidden outcome keep you from learning your lesson here. Don’t retaliate.