Most jobs can be quantified. That is, it’s possible to measure success on the job by tallying how much an employee produces in a given period—whether that’s widgets, reports, new clients or sales.
By using such objective measures to decide who is terminated, employers have powerful evidence to counter discrimination claims.
Recent case: Marilyn Bernard, who is black, worked at a bank where her job was to sell additional services to new or existing clients. When she fell behind very specific goals for adding clients, the bank warned her she faced termination.
Over the next few quarters, she continued to miss her numeric goals. So did three white men who did the same job. Two simply resigned. But the third finally raised his productivity and met his goals. Bernard did not and was terminated.
Bernard sued, claiming she was the victim of either race or sex discrimination.
But the bank showed it treated everyone in the same job equally, requiring that they all meet the same production goals. The court dismissed Bernard’s lawsuit, based on the bank’s easily measurable standards that it had obviously applied to everyone, regardless of sex or race. (Bernard v. J.P. Morgan Chase, No. 08-Civ-4784, SD NY, 2010)
Final note: Courts seldom get involved when it’s clear employers use objective measurements. And they don’t judge whether the goals are reasonable. You can set high standards, as long as you are equally tough on everyone.
- Be prepared to answer the question: Are you biased, or is employee overly sensitive?
- Legitimate business reasons for decision? Feel free to fire employee who has complained
- Remind bosses: No talk of pregnancy plans
- Worker quit voluntarily? Don't rule out discrimination suit
- Even vague EEOC complaints can get a trial