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Get it in writing! You need consistent, persistent documentation

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources,Leaders & Managers,Office Management,Performance Reviews,Records Retention

If I had to boil employment law into one overarching maxim, it would be this: Be fair and document everything, in case someone thinks you’re not being fair.

If you doubt the importance of thorough documentation, consider two recent cases decided by the 6th Circuit Court of Appeals.

Campbell’s in hot water?

Abdulnour v. Campbell Soup Supply Co. is a national-origin discrimination case brought by an Iraqi national after Campbell’s Soup fired him for job performance that was less than “M’m! M’m! Good!”

The 6th Circuit upheld a trial court’s dismissal of the lawsuit on summary judgment because Abdulnour could not come forward with any objective evidence that Campbell’s Soup didn’t honestly believe in the reasons proffered for his termination.

Despite the employer’s victory, there is a lot for HR pros to learn from the company’s failure to document Abdulnour’s performance problems. The court wrote:

“As the record reflects, there was a myriad of problems with Plaintiff’s job performance and treatment of his subordinates that justified Defendants’ decision to fire Plaintiff. This, however, is not what Defendants told Plaintiff during their final meeting. Defendants did not tell Plaintiff he was being fired for poor performance, but rather because of an unspecified ‘personality conflict.’ While the law does not specifically require an employer to list every reason or incident that motivates its decision to terminate an employee, we are skeptical of undocumented accounts of employee conduct that may have been created post-termination.”

It’s safe to assume that if Abdulnour could have come forward with any evidence at all to support his allegation of pretext, the court would not have hesitated to require the company to justify the termination at trial.

A better idea from Ford?

In Upshaw v. Ford Motor Co., the employer didn’t start documenting Upshaw’s performance problems until after she filed EEOC charges.

After she filed her third charge—plus a lawsuit—Ford fired her. The 6th Circuit concluded that, while Upshaw’s underlying race discrimination lawsuit was baseless, her retaliation lawsuit warranted a trial. The court’s reasoning:

“Upshaw has proffered evidence that Ford subjected her to heightened scrutiny soon after she filed her 2003 EEOC charge. It is undisputed that [Ford managers] began developing a timeline of Upshaw’s employment in fall 2003, and that they requested that other Ford employees submit information about Upshaw’s complaints to Human Resources…. Given the close temporal proximity between Upshaw’s August 2003 EEOC charge and Ford’s request for information from other employees documenting Upshaw’s complaint activity, and [her manager’s] request for discipline, a reasonable juror could find that Upshaw has established a prima facie case of retaliation.”

Document, document, document

The lesson to be learned from those two examples is basic, but one that cannot be repeated enough. Any employer’s greatest defense against a claim of discrimination or retaliation is a contemporaneously created, well-documented history of performance problems to support the termination.

The Abdulnour case cannot be any clearer: When an employer relies on undocumented accounts of misconduct to support a termination, it is fair for the court to infer that those accounts were created after the firing occurred.

As Upshaw illustrates, though, it is not enough simply to document performance problems. The documentation must be consistent.

A lot of employers think nothing of papering a personnel file after an employee becomes difficult. If the papering begins after an employee files a discrimination charge or engages in other protected activity, the employee may have prima facie evidence of retaliation.

In other words, document early and document often—and don’t document selectively.

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