Can I fire an underperforming employee after a retaliation claim in California? If you’re an employer asking this question, you’re not alone. Managing performance issues after an employee files a retaliation or discrimination complaint can feel like walking a legal tightrope. One wrong move could lead to a costly lawsuit for retaliation under California law—even if your reasons for termination are legitimate.
At Rupal Law, we advise California employers every day on how to handle these high-risk situations properly. In this blog, we’ll explain when termination is lawful, when it’s not, and how to protect your business if you’re dealing with a retaliation claim and underperformance at the same time.
Understanding Retaliation Claims Under California Law
In California, it’s illegal for an employer to retaliate against an employee for engaging in a “protected activity.” Protected activities include:
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Requesting a reasonable accommodation for a disability
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Filing a harassment or discrimination complaint
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Reporting workplace safety issues or wage violations
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Participating in an internal or government investigation
Once an employee files a retaliation claim, any action taken against them—like discipline, demotion, or termination—will be viewed with increased legal scrutiny.
What Employers Can and Can’t Do
If the employee is underperforming or breaking company policies, you still have the right to address it. But you must prove that your actions are:
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Based on legitimate business reasons
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Supported by clear documentation
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Consistent with how you treat other employees
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Not motivated by the retaliation complaint
Problems arise when employers act without documentation or when the timing of termination suggests it’s connected to the complaint. Even if the reasons are valid, it could still be seen as retaliation in court.
How to Lawfully Terminate or Discipline After a Retaliation Claim
To reduce the risk of legal trouble, California employers should follow these key steps:
Document Everything
Start by thoroughly documenting:
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Specific performance issues
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Violations of clearly established company policies
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Dates and content of coaching sessions or disciplinary actions
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Any written warnings or formal evaluations
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Attempts to support the employee through training or resources
The goal is to show that the decision was already in progress—or justified—independent of the retaliation claim.
Be Consistent
Apply your performance standards and discipline procedures evenly across all employees. If others aren’t disciplined for the same behavior, your actions may appear targeted or retaliatory.
Use Progressive Discipline
Progressive discipline shows good faith and gives the employee a fair chance to improve. This may include:
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Verbal warnings
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Written warnings
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A performance improvement plan (PIP) with measurable goals and timelines
If improvement doesn’t happen after these steps, you’ll have a stronger case for lawful termination.
Focus on Conduct, Not the Complaint
When discussing performance issues, don’t reference the retaliation complaint. Stay focused on objective facts like missed deadlines, client complaints, policy violations, or failure to meet performance goals.
Involve Legal Counsel or HR
Before taking final action, consult with your HR team and, more importantly, an experienced employment law defense attorney in California. Retaliation claims are one of the most common and high-risk types of employment lawsuits in California. Furthermore, the best way to protect your business is to get legal guidance from a firm that focuses on employer defense. You can call Rupal Law at (951) 460-0830 for a confidential consultation.
Common Employer Mistakes to Avoid
Here are some of the most common mistakes that can turn a lawful termination into a retaliation claim:
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Firing the employee shortly after the complaint without proper documentation
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Skipping the interactive process for disability-related requests
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Making inconsistent exceptions for other employees
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Letting the complaint influence your attitude or tone toward the employee
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Not investigating or addressing the original complaint before moving forward with discipline
You Can Protect Your Business
Yes, you can fire an underperforming employee after a retaliation claim—but only if you follow California employment laws closely. In addition, that means documenting everything, engaging in fair processes, and ensuring your actions are based solely on job-related reasons.
At Rupal Law, we help California employers evaluate legal risks and develop the right strategies to handle retaliation claims, performance issues, and terminations lawfully. If you’re unsure whether termination is the right next step, don’t make the decision alone.
Call Rupal Law today at (951) 460-0830 to schedule a consultation and protect your business before things escalate.
Our California disability discrimination defense lawyers serve Los Angeles, the Inland Empire, Orange County, and businesses throughout Northern and Southern California. We’re here to help you make the right call—before it becomes a legal problem.
