Here’s a practice you should make: Have the same manager who makes hiring decisions also make the firing decisions. Doing so will cut the chances of a successful discrimination lawsuit.
Here’s why: If a manager decides to hire a candidate, knowing that he belongs to a protected class, that manager obviously isn’t prejudiced. If the new hire doesn’t work out, courts will assume that discrimination wasn’t a factor in the termination decision. After all, it makes no sense to hire someone and then fire him because of his protected status.
Even better, courts now instruct jurors to presume there was no discrimination involved when the same manager who hired the candidate also made the firing decision. That’s a huge strategic advantage.
Recent case: Carl Smith, who is black, was hired by the Tuckahoe School District superintendent as the director of finance. Almost immediately, Smith had. Then the superintendent learned Smith had trouble when he worked for his former employer, too.
Around the same time, Smith claimed the superintendent used a racial slur against him and called another black employee “brown sugar” while attempting to kiss her. The superintendent fired Smith.
Smith sued, alleging race discrimination.
The court told the jury it could presume the superintendent was not motivated by racism since he had also hired Smith in the first place. Eventually, Smith’s case was tossed out. (Smith v. Tuckahoe School District, No. 03-CIV-7951, SD NY, 2010)
Final note: The judge also told the jury it could consider the fact that Smith had lied on his application as evidence of lack of credibility. The jury apparently didn’t believe Smith had been called a racist name or that he had been terminated for complaining about the term “brown sugar.”
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