With the many ways employees can sue their employers today, almost any employee can sue for discriminatory termination. How then can employers get rid of bad workers without getting caught in an expensive court battle? Here are four tips:
Look to the Past
Ask yourself how you have handled similar situations, because discrimination lawsuits are almost always brought by employees who feel they have been treated differently from other employees. Employees don’t like to admit fault in themselves (do any of us?), and thus are quick to look for factors such as membership in a protected class to explain their termination. Remember that protected categories are broad, particularly on the state and local level, and can include such things as military service, association with a disabled person, personal appearance, parental status, and political opinion.
In light of this, if you gave warnings or second chances to other employees under similar circumstances, give warnings or second chances now. This is particularly important in light of research that shows that people are more likely to be lenient with people who are like themselves or who are in majority groups, and that they are unaware that they are being more lenient.
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For employers, this research means that white male employees are more likely to be given a chance to improve than other employees even though no discrimination is consciously intended – and that means that the terminated employee may well be able to point to other employees who don’t share a protected trait who were treated better.
Document the Reason, but Don’t Overdo it
You’ve probably heard a million times that you should document performance issues: write memos to the file after counseling sessions, preferably signed by the employee; note problems on performance evaluations; keep copies of attendance records and documents showing mistakes. This is good advice. When the employee or his or her attorney asks to see the employee’s file, the detailed record may be enough to stave off a lawsuit and if not, it will certainly help you in court.
There is a large caveat to this advice, however. Don’t overdo it! Too often, employers who have decided to get rid of an employee will begin harping on every mistake and documenting every little thing, building a thick case to justify termination. The problem with this approach is that the employee’s lawyer is going to be able to paint such efforts as singling the employee out for harsh treatment and even setting the employee up by creating reasons for termination.
The problem is even worse if the close scrutiny started soon after the employee announced a change in circumstances such as her pregnancy or his need for family or medical leave. The bottom line is to evaluate and discipline employees as similarly as conditions allow, and record actions and conversations with the same frequency and intensity for each employee.
When you tell an employee he or she is being terminated, it is generally a good idea to state why – but only if the statement is truthful. While some employers believe that stating reasons for termination is bad policy, letting someone go without explanation allows him or her to assume a discriminatory reason.
A short, honest statement that focuses on the employee’s actions and not on the employee’s characteristics is the best way to prevent a lawsuit. It can be difficult to say something negative, but resist the urge to soften the blow by giving a reason that isn’t truthful. If you falsely tell a poor performer that he or she is being let go because of the economy or a reorganization, expect to be served with a lawsuit when you advertise to fill the position or revert back to the normal departmental structure.
Employees’ lawyers love to point out inconsistencies in employers’ reasons for termination, and you will regret it deeply if you tell the employee one thing, the unemployment office another, and respond with a third in your answer to the employee’s lawsuit. Articulate one true reason and stick by it to prevent trouble.
Beware the Hostile Environment
Some employers want to avoid the hassles and risks of terminating an employee and instead set out to make work so unpleasant that the employee will resign. Good strategy? Hardly.
Yelling, name calling, inconvenient shifts, heavy workloads, removal of authority, exclusion from meetings, dangerous conditions, social isolation and the like have given rise to successful lawsuits for harassment based on a hostile work environment. To prevail, employees have to show that the hostility was because of their membership in a protected category, but as noted at the outset, that isn’t hard to do these days.
Employers who engage in this type of behavior can expect to pay large amounts for emotional distress and even punitive damages. If the hostility arises after the employee has complained about discriminatory treatment, retaliation claims can come into the picture as well. Stick to reasonable, civil, and fair treatment and stay out of court.