One easy way to cut down on lawsuits when you have to fire an employee: Have the same person who hired or last promoted the employee also make the final decision on termination.
Courts often conclude that it would make no sense for those who hired or promoted someone to turn around and fire that same person for discriminatory reasons. This is called the “same-actor” defense.
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Recent case: Troy Cordell worked for Verizon, selling phone services. The company has a rule that prohibits employees from handling transactions involving relatives.
Cordell, who is black, admitted that he had handled such transactions. Verizon fired him.
Cordell sued, alleging that white employees who broke the same rule hadn’t been fired. However, he didn’t offer any solid proof.
The employer argued that there was no way that those who fired Cordell could have been biased, because the two involved—a supervisor and an HR manager—had just promoted Cordell a few weeks earlier. It wouldn’t make sense, the company argued, for prejudiced supervisors and managers to promote someone and then fire that person weeks later.
The 2nd Circuit Court of Appeals agreed. (Cordell v. Verizon Communications, et al., No. 08-2616, 2nd Cir., 2009)
Final note: For the same-actor defense to succeed, you have to make a regular practice of having the same people who make the hiring and promotion decisions also make the discharge decisions. You can’t apply the rule sporadically or when you suspect the employee will sue. Make it standard practice.
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The Firing Meeting: 4 Classic Mistakes
Terminating an employee is one of the most stressful tasks managers and HR pros will ever have to face. Don't let a difficult job turn into a legal nightmare too. A former employee who feels she's been wronged is a lawsuit waiting to happen. Avoid these common firing mistakes, and you'll probably avoid an expensive trip to court as well.
1. Making it a surprise.
Workers should never be completely surprised by a performance-based termination; they should be given enough regular feedback and chances to improve to know that the end is near.
2. Going off script.
Follow your established discipline policy. If it says you’ll provide an oral warning, a written warning and a probationary period, then stick to the process. Of course, your handbook also should give you the right to immediately terminate workers who engage in serious misconduct. But before you skip progressive discipline, make sure you have all the facts.
3. Being too kind or apologetic.
You may feel compassion for the employee, but don’t express your feelings the wrong way. If a worker’s performance was substandard, don’t offer compliments to ease the pain. That approach may make you feel better, but it will only infuriate the worker because it will appear he’s being fired for no reason—or a discriminatory one.
4. Loose lips.
Don’t discuss your reasons for the termination with other employees; and make sure other managers do the same. It’s enough to say, “Kevin will not be working with us anymore.”
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- How to Fire an Employee the Legal Way: 6 Termination Guidelines
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