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Accused of Racial Discrimination After Firing an At-Will Employee

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  • 11-08-2015, 10:48 AM
    cbg
    Re: Termination of Protected Class Employee in At-Will State
    The minority employee was discharged for performance issues, though we didn't indicate a reason in the termination letter.

    The only documentation we have of the minority employee's performance issues is the mid-year evaluation. However, the minority employee was the only one subject to a mid-year performance review. None of the other white staff in the department received a mid-year performance evaluation.

    The minority employee was the only one who received a mid-year performance evaluation because he was the only who showed performance lapses necessitating it.

    Is this a valid defense?


    Not really. I'd give it 50/50 at best. Try this as your defense and you'd better be prepared to show documentation that not a single Caucasian employee had a single instance of poor performance all year; that every single one of them was perfect all the way down the line.

    And I'm sorry, but I just don't believe that.

    - - - Updated - - -

    I'm not saying don't take him back. I'm saying you want to be prepared for all the potential issues of doing so.
  • 11-08-2015, 11:08 AM
    Taxing Matters
    Re: Termination of Protected Class Employee in At-Will State
    Here is the problem in a nutshell: you cannot fire an employee because of his/her race (among other characteristics) even though employment in pretty much every state is at will. When terminating an employee, the law doesn’t require lots of documentation, progressive discipline, or any of that but an employer who doesn’t do those sorts of things to lay a good trail of evidence to show that the termination was for some reason other than illegal discrimination is put in a bad spot when an employee alleges that the reason was for illegal discrimination. When that employee is the only person of that race in the department or company and he or she gets canned that’s just asking for an illegal discrimination claim if the employer cannot show that race was not the reason for the termination. A jury is allowed to infer that race is the reason when the employer’s defense effectively is “well, we didn’t fire him because of his race but we can’t really explain why we fired him.”

    An employee who had been performing satisfactorily and then gets fired all of the sudden for a claimed performance issue with no documentation at all to back that up — no warnings, no discussions of the problem, no efforts at giving him a chance to improve, etc. — is a problem because it may well appear to a jury that the claimed performance problem that the company didn’t bother to document or try to fix wasn’t the real reason for termination, and that will then lead the jury to think that race may have been the real reason if it doesn’t believe the reason the company offered.

    I suggest your company contact a good employment law attorney ASAP to do figure out what its exposure is and how to deal with it. I also suggest the company consult that lawyer for procedures to put in place on how employees will be disciplined and terminated to ensure that the company can protect itself against illegal discrimination problems. Part of that procedure should be training all managers about illegal discrimination and how to prevent it. The company needs to make that a priority; companies that do not consistently emphasize that they will not tolerate illegal discrimination are the ones that will get burned at some point when some manager does some bonehead move that opens up the company to huge liability for illegal discrimination.
  • 11-08-2015, 11:20 AM
    throwaway64759
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting Taxing Matters
    View Post
    When that employee is the only person of that race in the department or company and he or she gets canned that’s just asking for an illegal discrimination claim if the employer cannot show that race was not the reason for the termination. A jury is allowed to infer that race is the reason when the employer’s defense effectively is “well, we didn't fire him because of his race but we can't really explain why we fired him.”

    An employee who had been performing satisfactorily and then gets fired all of the sudden for a claimed performance issue with no documentation at all to back that up — no warnings, no discussions of the problem, no efforts at giving him a chance to improve, etc. —
    is a problem because it may well appear to a jury that the claimed performance problem that the company didn’t bother to document or try to fix wasn’t the real reason for termination, and that will then lead the jury to think that race may have been the real reason if it doesn’t believe the reason the company offered.


    We do have one piece of documentation and that is the mid-year evaluation. The mid-year evaluation contains documentation of performance lapses. However, the mid-year evaluation was drafted by the higher up who didn't like him (not his immediate supervisor who did the annual performance review) with feedback from his immediate supervisor and another supervisor. It may be interpreted as subjective as there's no numerical scoring on a scale as with our annual performance review. There's also no date on the mid-year evaluation and no signature from the supervisor, HR or any higher ups. It also does not have any statements about disciplinary consequences (ie. "up to and including termination"), no points for improvement, and no timeline for improvement. He was also the only one in the department to receive a mid-year evaluation.

    I'm not sure if the higher-up is racist. It's more likely that said individual didn't like the minority employee on a personal basis due to an argument with him months earlier, and simply wanted an excuse to get rid of him. Our reason for termination is performance. Our fear the courts may infer racial discrimination due to disparate treatment and disparate impact since he's the only minority in the department and the only one to be discharged.

    What should we do?
  • 11-08-2015, 11:21 AM
    jk
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting throwaway64759
    View Post

    We also spent about $50k in just recruiting the guy, and will like spend another $50k to find a replacement. If he's willing to come back why not?

    because it pretty much proves his claim that his performance was not the basis for termination. If he deserved to be canned then why now is he worthy of hiring back?

    plus it nullifies the superiors authority. Re-hiring the guy means the superior does not have the authority to take actions like this. If guy is re-hired the superiors authority to act should be addressed. Maybe he shouldn't have the authority to fire without some over sight by others.
  • 11-08-2015, 11:37 AM
    throwaway64759
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting jk
    View Post
    because it pretty much proves his claim that his performance was not the basis for termination. If he deserved to be canned then why now is he worthy of hiring back?

    plus it nullifies the superiors authority. Re-hiring the guy means the superior does not have the authority to take actions like this. If guy is re-hired the superiors authority to act should be addressed. Maybe he shouldn't have the authority to fire without some over sight by others.

    Again, when the termination decision was made we looked into transferring him to a different department (although this can be used as evidence that his performance wasn't really that bad, and it was just a personality conflict). The head of that department was open to taking him, but the higher-up intervened and didn't want it to happen.

    Yes, I allowed the decision. We are in at-will state so we thought it was fine. Unfortunately we failed to consider the minority/protected class angle. In hindsight we may have erred in not getting the full story from the employee's side, and not building a big enough case with respect to documentation. I was relying on at-will employment to allow for it. Now I'm worried about a potential wrongful termination/racial discrimination lawsuit.

    The higher-up is new to the company and has been with the company for less time than the minority employee. Would you recommend speaking to the higher-up to rescind the decision and allow reinstatement?
  • 11-08-2015, 12:13 PM
    Taxing Matters
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting throwaway64759
    View Post
    Would you recommend speaking to the higher-up to rescind the decision and allow reinstatement?

    Really, no one here can tell you what the right solution is. I don’t have all the facts and I don’t really know anything about your company. All I’ve got is the little bit that you’ve said here. What the company needs to do is consult an employment law attorney and then decide what to do after hearing what risks the company has if the employee sues and what the options are that may minimize those risks. If your company really doesn’t want the guy working there, then your company may want to explore other options that do not involve reinstatement.
  • 11-08-2015, 12:16 PM
    jk
    Re: Termination of Protected Class Employee in At-Will State
    I wouldn't say a word the the higher up employee until you speak with the corporate counsel


    and if you have the power to control this higher up employee, why would you need him to rescind anything? You may be best served by hanging him out to dry, so to speak. His best purpose right now may be as a sacrificial lamb to appease the EEOC gods.


    Speak with the company lawyer. That is your best and smartest direction. Do not do anything, including having discussions with the fired employee, his attorney, or the superior employee that fired him until you speak with the company's legal advisor.
  • 11-08-2015, 12:32 PM
    llworking
    Re: Termination of Protected Class Employee in At-Will State
    Quote:

    Quoting throwaway64759
    View Post
    The minority employee was discharged for performance issues, though we didn't indicate a reason in the termination letter.

    The only documentation we have of the minority employee's performance issues is the mid-year evaluation. However, the minority employee was the only one subject to a mid-year performance review. None of the other white staff in the department received a mid-year performance evaluation.

    The minority employee was the only one who received a mid-year performance evaluation because he was the only who showed performance lapses necessitating it.

    Is this a valid defense?

    - - - Updated - - -



    His attorney is asking us to re-hire the employee, either in his previous role or to transfer him to a different department.

    We were initially open to transferring him to a different department. The head of that department was open to taking him, but the higher-up intervened and didn't want it to happen.

    If this goes to mediation what kind of settlement are we looking at? What about litigation? Should we just allow for reinstatement and avoid the legal headache and monetary payment? The employee is generally well-liked by all but this one individual.

    We also spent about $50k in just recruiting the guy, and will like spend another $50k to find a replacement. If he's willing to come back why not?

    The bolded is just one more reason why I think that the higher up should be fired. It shows that he puts his ego above the best interests of the company.
  • 11-08-2015, 01:16 PM
    cbg
    Re: Termination of Protected Class Employee in At-Will State
    We do have one piece of documentation and that is the mid-year evaluation. The mid-year evaluation contains documentation of performance lapses. However, the mid-year evaluation was drafted by the higher up who didn't like him (not his immediate supervisor who did the annual performance review) with feedback from his immediate supervisor and another supervisor. t may be interpreted as subjective as there's no numerical scoring on a scale as with our annual performance review. There's also no date on the mid-year evaluation and no signature from the supervisor, HR or any higher ups. It also does not have any statements about disciplinary consequences (ie. "up to and including termination"), no points for improvement, and no timeline for improvement. He was also the only one in the department to receive a mid-year evaluation.

    So, one and only one employee received a mid-year eval; that mid-year eval is the only documentation of any performance issues, and it was drafted by the person who wanted him fired? It's not dated, it doesn't follow the format of your usual evals, it's not signed, and from the sounds of things no one even knew about it?

    You seriously can't see how that is going to look if those facts are ever put in front of a judge or jury?
  • 11-08-2015, 01:32 PM
    comment/ator
    Re: Termination of Protected Class Employee in At-Will State
    And you seriously do not understand what would happen if you hire him back at this point? Seriously??? You have him back, he knows he owns you and knows you're afraid of him and he doesn't have to do jack squat for the rest of his employment there because he can just threaten to sue again. Morale will plummet like a rock as your other employees watch this protected bird get paid to basically do whatever he pleases, while they are still expected to work and have at least satisfactory performance. I worked for an agency where there were a few of these supposedly "bullet proof" protected class folk who had sued their employer and been reinstated. It was no fun to deal with any of them and the agency very rarely ever got any meaningful work from them again.
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