Fired legally or national origin discrimination?

by on January 5, 2009 · 0 Comment POSTED IN: HR Info Center

National origin discrimination lawsuits and discipline documentation

When Ahmed Asfar saw HR manager Lucy Edwards seated in the conference room, he realized this was no ordinary meeting. Ahmed’s boss, Dan Ott, sat next to Lucy at the table.

“I’ll get right to the point,” said Dan. He pulled Ahmed’s recent performance review from a manila folder. “Ahmed, your record shows you don’t get along well with people here. And your management style is lax. Your group isn’t meeting quota and morale is low among your people.”

“So what does this mean?” asked Ahmed.

Dan glanced nervously at Lucy, who spoke up. “It means we won’t be renewing your employment contract when it expires next month. I’m sorry.”

Rude co-workers

Ahmed shook his head. “Come on, let’s get real. I’m an Iranian. Over the past few years, ever since 9/11, we all know that people around here have become ruder and colder to me. I’m not saying it’s harassment, but if I don’t get along with people, it’s not my fault, it’s because they’re prejudiced against my national origin being from Iran.”

Dan disagreed. “Your review shows a big drop in productivity. Here it is, in black and white. That’s not prejudice – it’s business!”

“First of all,” said Ahmed, “you haven’t fired other people for similar drops in productivity–”

“Yes we have,” said Lucy.”

“Let me finish,” said Ahmed. “They weren’t fired without getting a warning.”

He pointed at his file. “Where’s my warning? You made an excuse to fire me because of my heritage!”

“That’s not true,” said Lucy. “Your employment was at-will. And we are unhappy with your performance.”

Ahmed filed a national origin discrimination lawsuit. The company asked for the case to be dismissed. Did the company get a quick legal knockout?

The decision

No. A federal district court refused to dismiss the case and ruled Ahmed could continue his claim of religious and national origin discrimination.

Ahmed’s employer documented his problems with co-workers and his poor performance, but it wasn’t enough to win a summary judgment.

Reason: This employer showed no documentation of a decline in performance, no indication of earlier concern and no records of having brought it to Ahmed’s attention before his termination.

Instead, it looked to the court as if the company didn’t give him the opportunities for improvement given to others – and a jury would get to decide if the company was acting in a discriminatory fashion.

Creating a paper trail

In reaching its decision, the court noted the reasons for Ahmed’s termination had been “expanded and amplified over the course of discovery.” In other words, the employer’s attempt to assemble documentation after the fact looked suspicious.

That’s why it’s important to document a slide in performance, including how management responded to the slide. Only after performance doesn’t improve should you take the final step of firing the employee.

Cite: Afshar v. Pinkerton Academy, No. 03-137-JD, D.N.H., 9/7/04. Fictionalized for dramatic effect.

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