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Document reason for termination to make sure courts don’t second-guess your decision

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in Discrimination and Harassment,HR Management,Human Resources

If you have to fire an employee, don’t worry that a court is just waiting to second-guess why you did so.

The fact is, courts are reluctant to question your reasons as long as you can convince them the reasons were honest, even if in retrospect they may seem baseless or even foolish. They don’t want to become a national HR department.

Recent case: Elena Mihailescu, who is over 40, lost her job at a nursing home after 16 years of service. Her employer admitted she had a good work history but said it fired her because of one instance in which she refused to follow instructions.

She sued, alleging that was just a pretext. She alleged age discrimination as well as discrimination because she had previously filed several workers’ compensation claims.

The 9th Circuit concluded courts shouldn’t second-guess decisions that are made honestly, even if they are “foolish, trivial or baseless.” Mihailescu had to do more than prove the reason was less than wise. She had to show it was a pretext for discrimination. (Mihailescu v. Maryville Nursing Home, No. 08-35015, 9th Cir., 2009)

Final note: Be prepared to show you had a genuine reason to fire someone. If the employee broke a rule, record the details. It also helps to be able to show that others who broke the same rule suffered the same fate. That protects against claims of discrimination.

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