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Employer Strikes Back

On Behalf of | Apr 13, 2016 | Employment Law

For fellow Star Wars followers, yes the title of this article is a play on words to lighten an otherwise serious topic. Many business owners have come across a situation where they have an employee who has either acted badly in the work place or is a poor job performer, yet, when that person is fired, the former employee falsely claims the real reason for the firing was because of his or her protected class, whether it be race, gender, religion, sexual orientation, age, disability or otherwise.

It is not infrequent that the business owner wants to strike back with perhaps a defamation suit against that employee for the false allegations; however, that would be a bad choice as Charles Peters, the majority owner of Peters’ Bakery in California, discovered. On September 27, 2011, Peters had an employee file a race and national origin discrimination claim against his business, Peters’ Bakery.  In response, Peters filed a defamation claim against the employee in the California Superior Court, Small Claims Division, stating the employee owed him $10,000 for “defame of character.”  The strike back by Peters makes him now face a summary judgment motion filed by the Equal Employment Opportunity Commission in federal court for retaliation in having filed his defamation suit in response to the employee’s claim of charge of discrimination.  The summary judgment hearing is scheduled for this month.

Under most federal and state laws protecting employees, there are provisions against retaliation for employees filing claims or participating in the claims process; whether or not those claims are under employment discrimination, whistleblower protection, worker’s compensation, or other state or federal laws aimed at protecting employees.  The retaliation provisions of these laws generally prevent an employer from taking adverse action against an employee for filing a claim.  Filing a suit for defamation against the claimant is certainly taking an adverse action.  Unlike some other situations in life, in employment claims usually the best defense is a strong defense, not a strong offense.  It is prudent to address the claims of the employee in the forum that they are raised and if you cannot win on a procedural basis then when the claims are false, prove through documents and testimony why the claims are false and, if appropriate, show that the claimant knows that the claims are false.

Employment discrimination laws prevent adverse actions being taken against employees because of their protected class, but does not make members of a protected class protected from any adverse action.  In other words, being a jerk is not a protected class and being an underperformer is not a protected class.  The key is working with employment counsel preferably before firing an employee and then if needed thereafter to provide a sufficient and honest trail of evidence that the employee who was fired was done so legally.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].