Consistently helps with employment termination proceedings

by on May 22, 2009 · 0 Comment POSTED IN: HR Info Center

Being consistent in discipline and process avoids employment termination lawsuits.

Pretext means that the real reason you’re giving for the employment termination appears to be a lie, that you’re covering it up for something else. So can you pass the stink test? Can you keep a straight face as you say that the employment termination decision was really made because of a legitimate non-discriminatory reason? If you can’t, it could be that your reason is just a pretext from unlawful discrimination. So keep these things in mind as you’re making employment termination decisions.

In the Reed’s case, which is a 2000 Supreme Court case, the Supreme Court held that a jury might infer discrimination in employment termination, if there are signs that the employer’s proffered reason for acting is false or unbelievable. An employee does not need to provide any additional proof that his or her protected class motivated the employer. They don’t necessarily have to give evidence of discriminatory remarks. It’s tough. The courts are allowing juries to make these inferences.

Consistency eliminates pretext
So, consistency really is key in employment termination decisions. And to eliminate any possibility that your stated reasons are going to be deemed a pretext, you’ve got to ensure that the true and legitimate reasons for your disciplinary actions are consistently communicated at every stage.

In communicating your employment termination decision, you really want to be compassionate but not about apologetic. Understand that you’re terminating an employee from his or her job, which can cause anger or embarrassment, and it can lead to litigation. So you want to try and let the employee down easy. If at all possible, avoid having the former employee embarrassed by being escorted out of the building by a security guard in the full view of co-workers. How you treat employees as they leave their employment may really help you prevent litigation? Being compassionate doesn’t mean that you should be apologetic.

Don’t apologize for the employment termination.
Being apologetic can lead them to believe he or she is being terminated for reasons other than a poor performance or whatever the actual reason is, and this inconsistency can lead the employee to litigation.

You won’t argue or negotiate with the employee during the employment termination process. A decision has been made so just be firm. And you want to try and keep the meeting relatively short, no longer than 15 minutes, if possible. And you just don’t want to get in to a shouting match with the person. Decision has been made, you need to relay the decision and move on.

Same actor defense
If possible, you want to use the same-actor inference of non-discrimination during the employment termination proceedings.
A number of courts have recognized this so called same-actor inference for presumption of non-discrimination. And under that same-actor inference, the court will make the presumption or inference of non-discrimination as the individual who allegedly made the discriminatory decision is the same individual who hired the employee in the first place.

This inference will really rest upon common sense. If someone is biased against a certain protected class, he or she would be unlikely to hire an employee in that protected class. And this can be a very powerful principle particularly at the stage of an administrative investigation such as at the EEOC or the Department of Human Rights.

On the other hand, you can’t just use rubber-stamping. You can’t have one person sign all your offer letters and termination letters. And then hope to use the same-actor inference particularly, if that person is a high-ranking manager that has little direct involvement in personnel decisions.

The same-actor inference must have some – the same-actor must have some meaningful role in the decision making process. So it needs to be the person who the employee really reports to and has direct contact with. If it’s not possible, you should really think about doing that, because it can be very effective in negating discrimination.

This is the edited remarks from the Rapid Learning Institute webinar “Firing Employees Without Getting Sued -What Supervisors Really Need To Know” by Laura Liss, Esq. held on October 5, 2006.

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