How to fire an employee and avoid a costly lawsuit

by on May 27, 2009 · 0 Comment POSTED IN: HR Info Center

Consistency is key when you fire an employee

Be as consistent as you can possibly be with your procedures when you fire an employee. There are three mistakes and inconsistencies that employers make that put them at risk for lawsuits. First, a supervisor doesn’t practice what’s called ditto, ditta. Ditto, ditta means “do it to one, do it to all”. Second, an employer makes a decision based on “the list”. The list consists of any protected group; age, sex, race, national origin, disability, etc. Third, a supervisor doesn’t practice what he or she preaches.

If you find that you or you’re company are guilty of any of these inconsistencies, you’re putting yourself at risk for a discrimination lawsuit. If you don’t follow “do it to one, do it to all”, you run the risk of creating an implied contract. Say you’ve inherited a unit where one employee has been allowed to come in late every day for the last several years. If you’re not willing to discipline or fire that employee, you’re essentially telling the other workers it’s OK to come in late everyday. On the other hand, if you discipline another worker for coming in late while that same guy gets away with it, it starts to look like you’re discriminating against someone.

Fine an employee on “the list” and risk a lawsuit
Then there’s “the list”. A number of managers or supervisors aren’t willing to make an exception for or fire an employee who is underperforming because they’re on “the list”. But look at the categories on the list again. Age, sex, race, religion, national origin, disability. Everybody is on the list. If you’re afraid of firing these people, there’s nobody left. If you’re going to make an exception or fire an employee, make the exception based on performance, or based on behavior. Don’t fire an employee or make exceptions based on a protected category.

If you go to fire an employee, the outsider looking in, or the EEOC are going to ask, “Did you base it on the list?” Remember, the burden of proof is on you. It’s your responsibility to prove that you didn’t discriminate against that employee when you terminated them. You must prove that you communicated with the employee and that you gave him or her a reasonable opportunity to save their job. So do not discriminate or otherwise make employees miserable based on sex, age, religion, race, disability or national origin.

Practice what you preach before you fire an employee.
As a manager or supervisor, employees are watching you like a toddler does. They’re not kids, but emotionally, they’re looking for signals that we send. Sending the right signals and messages is critical. If you don’t walk the walk, the employees are quick to notice that. Especially with the millennial generation, they seem very aware of what’s going on and they’re forcing managers to be fair and do the right thing.

Your attorneys will tell you, it’s much easier to defend being consistently wrong than being inconsistent. But this doesn’t mean you shouldn’t make exceptions for good people. Does this mean the bad people might get upset? Yeah, they might. But if you treat good and bad employees the same, you’re sending the wrong message. If you look at the list, equal opportunity never meant equal treatment. If a bad employee comes in and says that a better employee makes more money, it’s eminently fair. A poor employee gets paid poorly. It’s a perfect match. If they do what the better employee does, then the get paid more, but until then, it’s perfectly fair. Keep that in mind when deciding to fire an employee

Edited remarks from the Rapid Learning Institute webinar: “Yes, You Can Fire Without Fear! What Every Supervisor Needs to Know” by Hunter Lott, Esq. on April 2, 2008

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