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  1. #1
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    Default Re: Termination of Protected Class Employee in At-Will State

    Talk to your company counsel cause that higher up has put you in a bad spot. Saying that a court might infer would be difficult as courts sometimes don't do the expected, but this looks kinda bad.

    When asked, what reason was given for not liking the employee? Has that higher up ever shown any sign of racial bias?

    What was the given reason for termination?

  2. #2

    Default Re: Termination of Protected Class Employee in At-Will State

    Thanks for clarifying. I believe the minority employee questioned a decision of the higher-up which the higher-up perceived as a challenge to their authority. Seems that higher-up has singled him out since and looked for some way to get rid of him. The reason given was performance.

    We are in at-will state so we thought it was fine. Unfortunately we failed to consider the minority/protected class angle. Since the employee is the only racial minority in the department and the only one who received a mid-year performance appraisal (for alleged performance issues), we fear that it may be inferred as motivated by racial animus in court, even if it's just coincidence.

    The higher-up is new to the company and has been with the company for less time than the minority employee. AFAIK we've never heard overt discriminatory remarks but the minority employee is the only one who was discharged by this individual. Everyone else in the department is white.

    Would you recommend speaking to the higher-up to rescind the decision and allow reinstatement as per the employee's attorney's request? How should we resolve this?

  3. #3
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    Default Re: Termination of Protected Class Employee in At-Will State

    hrowaway64759;920269]Thanks for clarifying. I believe the minority employee questioned a decision of the higher-up which the higher-up perceived as a challenge to their authority. Seems that higher-up has singled him out since and looked for some way to get rid of him. The reason given was performance.
    So, was there actually a performance issue, one that can be supported by others within the company?

    We are in at-will state so we thought it was fine.
    there are still laws against discrimination that are applicable in all states. There are laws against other forms of discrimination as well. It sounds like your management is due for some training on actual discrimination and perceived discrimination so this sort of thing doesn't happen again.

    Since the employee is the only racial minority in the department and the only one who received a mid-year performance appraisal (for alleged performance issues), we fear that it may be inferred as motivated by racial animus in court, even if it's just coincidence.
    sometimes the coincidence is enough to hang you, especially if it appears to not be so coincidental, such as the only person to receive a mid year evaluation, even if it is for what appears to be a valid reason. If no other employees have received mid year evaluations, especially if there was some with issues, it really looks like this employee was targeted. that in itself is not illegal but given it is the only racial minority, it starts to become damning.



    The higher-up is new to the company and has been with the company for less time than the minority employee. AFAIK we've never heard overt discriminatory remarks but the minority employee is the only one who was discharged by this individual. Everyone else in the department is white.

    Would you recommend speaking to the higher-up to rescind the decision and allow reinstatement as per the employee's attorney's request? How should we resolve this?
    Reversing the decision does not cure the action. As well, it may set a precedent to show that you did believe it was racial in nature and as such, puts it in the record that the manager does have a racial bias. That could be important in the future for any discrimination claim. If the discharge was justified, it may be better to stick to your guns and fight this. This is really the time to speak with company counsel.

  4. #4
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    Default Re: Termination of Protected Class Employee in At-Will State

    Let's put it this way.

    Your former employee wouldn't have to work very hard to show a prima facie case. I told you on the other forum where I've seen this question that I'd rather be the attorney representing the employee than the one representing your employer. I would recommend doing whatever it takes to keep this from getting to a formal discrimination claim because right now, your chances of winning aren't very high IMO. Reinstate the employee, settle money on the employee, fire the hire-up; whatever it takes. But if this goes to the EEOC and eventually to court, you're toast.

  5. #5
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    Default Re: Termination of Protected Class Employee in At-Will State

    Quote Quoting cbg
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    Let's put it this way.

    Your former employee wouldn't have to work very hard to show a prima facie case. I told you on the other forum where I've seen this question that I'd rather be the attorney representing the employee than the one representing your employer. I would recommend doing whatever it takes to keep this from getting to a formal discrimination claim because right now, your chances of winning aren't very high IMO. Reinstate the employee, settle money on the employee, fire the hire-up; whatever it takes. But if this goes to the EEOC and eventually to court, you're toast.
    I think that I would fire the higher up anyway. Any higher up who targets an employee just because they questioned a decision is a poor person to be in any kind of management position. What's more, I cannot see how you could reinstate the employee without firing the higher up. It would create a toxic work environment otherwise.

  6. #6
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    Default Re: Termination of Protected Class Employee in At-Will State

    Reinstating the employee is problematic in a number of ways, not the least of which is that once done, he will be practically bulletproof. But it would be less problematic if the higher up is fired. I agree with you that that *should* be done anyway. But I suspect that's not within the control of our OP.

  7. #7

    Default Re: Termination of Protected Class Employee in At-Will State

    Quote Quoting cbg
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    Let's put it this way.

    Your former employee wouldn't have to work very hard to show a prima facie case. I told you on the other forum where I've seen this question that I'd rather be the attorney representing the employee than the one representing your employer. I would recommend doing whatever it takes to keep this from getting to a formal discrimination claim because right now, your chances of winning aren't very high IMO. Reinstate the employee, settle money on the employee, fire the hire-up; whatever it takes. But if this goes to the EEOC and eventually to court, you're toast.
    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 - - -

    Quote Quoting cbg
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    Reinstating the employee is problematic in a number of ways, not the least of which is that once done, he will be practically bulletproof. But it would be less problematic if the higher up is fired. I agree with you that that *should* be done anyway. But I suspect that's not within the control of our OP.
    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?

  8. #8
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    Default 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.

  9. #9
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    Default 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.

  10. #10

    Default Re: Termination of Protected Class Employee in At-Will State

    Quote Quoting Taxing Matters
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    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?

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