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You’ve documented the poor performance. You’ve been careful to keep things professional, even as you’ve concluded you’ll probably have to fire the employee.

Then he files a discrimination complaint.

Avoid the temptation to speed up the usual disciplinary process. Act too hastily and the employee, who had a flimsy discrimination case, will suddenly have a valid claim for retaliation.

Recent case: Richard Boyle worked for HSBC Bank. He was 55 years old when he was hired and had made it known he might want to retire around age 60. As the years progressed and his retirement approached, the bank documented falling performance. His annual bonuses also fell to a smaller percentage of his salary.

That’s when Boyle filed an internal age bias claim, alleging the smaller bonuses were because of his age.

HSBC then apparently began a campaign that Boyle interpreted as an effort to punish him for complaining. His job description was changing and he could no longer manage others. Then, after returning from FMLA leave, he discovered that his name had been removed from his cubicle and his possessions boxed up.

Boyle sued, alleging age discrimination and retaliation.

Before the trial, a chain of e-mails between HSBC managers emerged. In one, a manager wrote they were “pressing Boyle’s buttons.” Another advised, “give him enough rope.” Yet another wrote, “I know this guy, if we craft the job description well, it boxes him in and he will begin to implode.”

The court said there was no evidence of age discrimination, since his poor performance was well documented. But there was evidence that the company was trying to punish Boyle for complaining. The e-mails said it all. (Boyle v. HSBC Bank, No. 08-Civ-11358, SD NY, 2010)

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