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Don’t pile on reasons for firing; you’re spoiling for retaliation fight in court

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources,Leaders & Managers,Performance Reviews

Let’s say you’ve got one very good reason to fire an employee, plus several other halfway decent reasons. Why not wrap them all into one big package of employee shortcomings when it comes time to show her the door?

Because such overkill could play badly in court if the dismissed employee ever sues you. And if she has recently filed an internal discrimination complaint, courts are quite likely to view the piling-on as a form of retaliation.

Her attorneys will try to make it easy for courts to look at it that way. They’ll start picking through the discharge reasons, looking for weaknesses. If they find one, the entire termination process will begin to look suspicious.

Recent case: Jacqueline Ferrel worked as a logistics analyst, scheduling deliveries. She got several merit bonuses and raises.

Then she had gastric bypass surgery and lost a considerable amount of weight. That’s when her boss apparently began treating her differently. Ferrel claimed he made her sit next to him during training and made comments that made her feel uncomfortable. She complained to HR about what she perceived as sexual harassment.

HR investigated and concluded that the supervisor had, indeed, made inappropriate comments and behaved unacceptably. He received a reprimand and apologized to Ferrel.

Then he allegedly began a campaign to get her fired. Ferrel suddenly could do nothing right. A co-worker overheard the supervisor state that he was going to “make sure that Ms. Ferrel was fired.” Someone else saved an e-mail that discussed a phone conversation about Ferrel’s alleged performance problems. It ended with the comment, “we can add this call to our dismissal case.”

Ferrel was eventually fired for a laundry list of alleged offenses: poor performance, tardiness, making personal phone calls at work and abusing her corporate American Express card by charging personal expenses.

The EEOC sued on Ferrel’s behalf, charging retaliation. In court, it chipped away at each termination reason.

First, the EEOC pointed out that performance hadn’t been an issue before Ferrel complained about harassment. The court agreed that “poor performance” was questionable.

Second, the EEOC said the company had set two different arrival times: one for Ferrel and one for everyone else. That made the alleged tardiness suspicious.

Next, the company couldn’t independently verify the personal calls Ferrel was alleged to have made. They were based on a copy of a personal cell phone bill someone had found.

Finally, the EEOC argued that plenty of other employees who hadn’t complained about harassment put personal charges on their company credit cards and later paid them off, just like Ferrel did.

It all added up to the impression that the company was looking for reasons to fire Ferrel. Now a jury will decide whether that’s what really happened. (EEOC v. Air Liquide, No. 08-3785, SD TX, 2010)

Final note: Before approving a termination request, make sure to check how other employees who have broken the same rules were treated. If they weren’t terminated for the same behavior, watch out.

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