- Blog post
Justified employee termination or discrimination? You make the call
Defend your employee termination decisions with documented progressive discipline.
Consider this scenario:
“That’s it. You’re fired,” print shop supervisor Eileen McMillan told operator Bernard Jenkins, who was seated at a table in the break room. “Lois told me you stopped working 45 minutes ago, came in here and just sat without punching out. And now I see it’s true. You’re stealing time, and I warned you last month that any more misconduct would mean termination.”
“You really have it in for black men, don’t you?” Bernard shot back. “You can’t stand to see me relaxing instead of running around like your little puppy.”
He was warned
Eileen clamped her lips closed and counted to 10. Then she said, “You’ve been involved in four serious arguments with colleagues – and me – in the past six months, and you were warned. Any employee would be terminated in these circumstances.”
“Oh, yeah?” Bernard challenged. “What about Vince and Anthony? They’ve been warned about taking unauthorized smoke breaks, and they keep doing it, but I don’t see you firing them. That’s stealing time, isn’t it? And what about Jane?” Bernard continued. “I know for a fact she’s missed punching out at least a dozen times. Isn’t that against the rules too?”
“Of course, Vince, Anthony and Jane aren’t black,” he added, glaring.
“Think whatever you want, but leave now,” Eileen said icily.
“OK, but this isn’t over,” Bernard said.
Later, Bernard sued the company for racial discrimination.
You make the call: Did Bernard win?
So did Bernard win his lawsuit?
No. The court said supervisor Eileen had a right to consider Bernard’s misconduct as more serious than that of the three white co-workers. It was not the legal system’s role, the court said, to challenge Eileen’s business judgment that Bernard’s “deliberate failure to clock out when (he) stopped working was more serious than either excessive smoking breaks or inadvertently missed punches.”
The court did accept Bernard’s argument that the final incident for which he was terminated was not “particularly egregious” in the context of this particular workplace, where break rules weren’t strictly enforced.
But Bernard had been warned that any further misconduct could lead to his termination, and Eileen had documented the warning in a written report. So when she fired him for sitting in the break room without punching out, she wasn’t discriminating against him compared with white colleagues, the court said.
Eileen used progressive discipline and documentation correctly, and as a result the company was able to successfully defend her decision in court.