Performance Issues and Racial Discrimination in the Workplace

by on January 7, 2009 · 0 Comment POSTED IN: HR Info Center

Documentation will go a long way to winning racial discrimination lawsuits.

“I’m afraid we’re going to have to let you go,” HR manager Priscilla Robards said quietly but firmly to planning associate Sherry Stewart.

“Why?” Sherry asked.

“I think you already know,” Priscilla said. “When your probationary period was extended, you and I agreed you needed to work on meeting deadlines, following instructions, and taking responsibility for completing assignments. We don’t feel that we’ve seen enough progress in those areas.”

“You didn’t give me a fair chance then, and you aren’t now!” Sherry said angrily.

“Not true,” Priscilla replied. “Fred Day and I, as your supervisors, talked this over at length. And we ran the decision past three other administrators in the division before finalizing it.”

Performance issues?

“But my colleagues consider me the hardest-working person in the place, and they’d tell you so if you wanted to listen,” Sherry said. “Even my so-called failure to meet deadlines is because I’m always being asked to help other people with their projects.”

“We never faulted you on your ability to get along with colleagues,” Priscilla said. “That’s a strength that will stand you in good stead in your job search. I suggest that you focus more on completing your own work in the future, though.”

“Thanks for the excellent advice,” Sherry said bitterly. “Would you also advise me to change color for my next job? Because you never gave me a chance, as an African-American.”

“That’s flat-out untrue,” Priscilla said.

Sherry sued for racial discrimination in the workplace. Citing her colleagues’ admiration for her work, she said performance was just an excuse to terminate her.

Did she win?

The decision

No, Sherry lost.

She produced affidavits from co-workers saying that her performance was excellent. But the court said that wasn’t the point. What mattered was how the employer saw Sherry’s work, not colleagues. To prove discrimination, she would have had to show that the employer believed she was meeting expectations, and fired her anyway.

Because Priscilla had carefully noted Sherry’s performance issues, and discussed them with her, it was clear the employer didn’t consider that she was meeting expectations.

No popularity contest

It’s always hard to fire a popular employee. Co-workers don’t like it, and even managers and supervisors may find it tough to pull the trigger on people who are appreciated for their personal qualities.

But work isn’t a popularity contest, and sometimes nice people aren’t good enough. Managers who have properly documented performance problems can take these tough decisions without flinching, and without fear of fallout. As a rule, the courts aren’t going to take the word of co-workers over yours about someone’s ability to do the job.

Burks v. Wisconsin Dept. of Transportation, No. 04-C-503-C, W.D. Wis., 5/11/05. Fictionalized for dramatic effect.

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