Common sense says that if a manager hires someone knowing that she belongs to a protected class, the manager probably won’t turn around a few months later and fire the new employee because she belongs to that protected class.
That’s why you should make it a policy that the same managers who make hiring decisions also make termination decisions.
Recent case: Donna Banks-Bey, who is black, was hired for a job that required her to use the telephone to gather background information to verify the accuracy of employee applications. She had no experience, but underwent extensive training.
Banks-Bey continually missed production and accuracy goals that her co-workers had no trouble meeting. Over her 18 months of employment, she was offered additional training and encouraged to improve her performance. Typically, she improved for a few weeks but then slipped back, producing substandard results. Finally, the same managers who had hired her recommended her termination for.
She sued, alleging race discrimination.
The court said that when the same person who hires an applicant winds up terminating that same employee, juries may infer that there was no discrimination at work. (Banks-Bey v. Acxiom, et al., No. 1:09-CV-1249, ND OH, 2010)
Final note: Make it routine: The one who hires also fires. The same decision-makers who made the hiring decision should also terminate the employee, unless they have left the company or moved to other positions.
- Got wind of harassment? Fast action can cut liability
- Update job descriptions regularly to include new duties & essential functions
- Heed legal risks of recruiting via Facebook, LinkedIn
- Use 'fresh-start' policy to cut retaliation risk
- When it comes to firing offenses, be sure you can show you treated everyone equally