Employers sometimes turn weak legal claims by former employees into stronger ones based on their reactions to being accused of harassment or discrimination. By appearing to retaliate against the complaining employee, the employer creates a basis for liability that is independent of the original allegation of improper conduct.

As an example, earlier this month, the Seventh Circuit Court of Appeals allowed a terminated female's retaliation claim to proceed to trial despite the fact that her initial sexual harassment claim did not approach the degree of severity required to pursue a hostile environment claim. In Egan v. Freedom Bank, the plaintiff was a bank vice president who alleged that a married male board member confessed his sexual fantasies involving her. In response, she filed an internal harassment complaint. The board member resigned, but two months later, the vice president was terminated, purportedly for business reasons.

The Seventh Circuit allowed the retaliation claim to proceed to trial. The bank's documentation did not reveal past problems with the plaintiff's performance. In addition, she produced evidence that the bank's president had criticized her decision to lodge the harassment complaint. The court upheld the retaliation claim despite its affirmation of the lower court's dismissal of the underlying sexual harassment complaint. The Seventh Circuit agreed that as a matter of law, the board member's single comment did not rise to the level of a hostile and offensive working environment.

This case demonstrates how the employer's reaction to a legally weak employment claim handed the plaintiff a potentially expensive one. Terminating her so soon after her complaint in a situation where there was little or no clear documentation of past performance problems invited a retaliation claim. In addition, by failing to counsel bank executives with regard to the legal implications of her initial complaint, the employer opened itself up to a jury determination on its actual motivation for the termination decision.