Employers that take the time to document workplace problems usually don’t lose discrimination lawsuits. The reason is simple: A carefully documented work history—showing exactly how the employee was breaking rules or underperforming—makes it difficult to prove discrimination.
That’s because the employee has to show that the legitimate reasons the employer gave for termination or other discipline were just a cover for discrimination.
Recent case: Roy Sicular, a Jewish white man, began working for the New York City Department of Homeless Services. Almost immediately, his supervisors and co-workers noted that Sicular had a hard time getting along with others.
Supervisors started documenting the problems right away. He allegedly yelled at co-workers and bosses, called his manager incompetent and told other employees that U.S. citizens deserved job preferences.
Sicular accused co-workers who were not native-born citizens of winning the “green card lottery.” Foreign drivers, he said, couldn’t drive safely because there were “no traffic lights in their countries.” To top it off, Sicular was also frequently late for work and lost expensive equipment, such as his employer-issued cell phone.
After disciplining Sicular each step along the way, the employer terminated him.
Sicular sued, alleging he had been targeted because of his race, gender and religion. He claimed that some co-workers made anti-Semitic comments, such as suggesting that Jews are cheap.
The court considered the department’s documentation and concluded it had proved it had legitimate reasons to fire Sicular. He couldn’t come up with anything to show that anyone outside his protected classifications was treated more leniently for the same conduct. The court dismissed his case. (Sicular v. NYC Department of Homeless Services, No. 09-Civ-0981, SD NY, 2010)
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- Use proactive process to stop little digs from adding up to hostile environment
- Win discrimination cases by showing that your rules apply equally to everyone
- Avoid shifting explanations for termination