Did “preemptive” firing of employee who testified in sexual harassment proceedings at former company violate Title VII?


Your organization recently hired Nikki to fill an open clerical job. She was discharged, however, prior to her first day of work because a prospective hire for a managerial position refused to join your company if Nikki worked there. The prospective hire disliked Nikki because she gave testimony against him in a sexual harassment investigation brought when both of them worked for a former employer. Because your company wanted the prospective hire to join the staff, and because he made it clear that he would not join your company if Nikki also worked there, Nikki was terminated. She has now filed a lawsuit alleging that your organization’s actions in firing her constitute unlawful retaliation in violation of Title VII. Will she be successful?


No. In a case with similar facts, a court found that even though an employer admitted it preemptively “fired” a newly hired nurse because a prospective physician refused to work with her due to her previous testimony against him in an unrelated sexual harassment case, that was not unlawful retaliation under Title VII. Rather, the employer simply made the business decision to terminate a new hire, in favor of a prospective hire. This prioritizing of hiring a doctor over a nurse, when hiring the doctor was a potentially lucrative business prospect and the continued employment of the nurse would jeopardize that prospect, was a perfectly legal termination of an at-will employee.

Moreover, there was no nexus between the nurse’s EEOC testimony for a former employer and her current employer’s decision to fire her. The employer did not know and did not care why the doctor did not want to work with the nurse. In fact, it was not until after the nurse had been preemptively fired that the medical practice’s HR manager discovered that the nurse previously had given testimony in an EEOC investigation against the doctor. Under these circumstances, the decision to fire the nurse, an at-will employee, was based on legitimate nondiscriminatory reasons, concluded the court.

Source: Wood v Outpatient Surgery Center, Inc (WDArk 2011) 2011 U.S. Dist. LEXIS 136366.

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