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  1. #1

    Default Accused of Racial Discrimination After Firing an At-Will Employee

    My question involves labor and employment law for the state of: OR

    We are in an at-will state. We recently terminated an employee who falls in a protected class (racial minority).

    The employee's attorney has come back to us alleging race discrimination.

    The employee's personnel file indicates no documentation of feedback, progressive disciplinary process or warnings of disciplinary action.

    The employee's annual performance review is "Meets Expectations" with no negative commentary.

    What should we do now?

    EDIT: The employee was terminated because someone higher up didn't like him. This higher-up joined the company after the minority employee and was not involved in the hiring process. Since the employee is the only minority in the department, is it possible the courts may infer discrimination?

    EDIT 2: Upon digging through the personnel file we've discovered one mid-year evaluation on file. The mid-year evaluation was drafted by the higher up who didn't like him and contains some written evidence of performance lapses. However, it seems subjective as there's no objective scoring or ranking on a scale as with our annual performance review. It also seems to be inconsistent with the posted job description we gave him.

    This minority employee was the only one in the department to get a mid-year evaluation (everyone else is in the department is white and did not get one).

    There's 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.

    We also don't have any documentation of prior or subsequent warnings or feedback.

    What should we do now?

  2. #2
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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?

  3. #3

    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?

  4. #4
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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.

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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.

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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.

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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.

  8. #8

    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?

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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.

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

    Quote Quoting throwaway64759
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    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.

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