Sometimes, you have to take a chance on a job applicant because the candidate pool isn’t filled with as much talent as you would like. Everyone knows picking a marginal candidate can turn out to be a mistake.
If you find you have to terminate such an employee, have the same person who made the hiring decision also make the termination decision. That reduces the chance of a costly discrimination lawsuit because courts assume that employers wouldn’t hire someone they know belongs to a protected class only to turn around and fire that employee because he belongs to the protected class.
Recent case: Ganiyu Jaiyeola claimed he was fired from his job because of race discrimination. But his former employer said he was terminated for and because the company was going through a reduction in force. The company also pointed out that the same manager who had recommended hiring Jaiyeola also recommended firing him.
The 2nd Circuit Court of Appeals said Jaiyeola had no proof that discrimination was involved since presumably the same person who hired him knowing his race wouldn’t then pick him for termination because of his race. (Jaiyeola v. Carrier Corporation, No. 08-CV-3786, 2nd Cir., 2009)
Final note: Make it routine whenever possible that the same person who hires also fires—not just in cases where you suspect there may be a discrimination lawsuit. The more routine your practices, the less likely a court will assume discrimination is at work.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- Don't stack the deck in arbitration
- Draft severance packages to comply with age-Bias law
- 'Reverse racism' or 'Racism'—Victim says it's all the same
- After discrimination complaint, be sure to document any potential disciplinary moves