By nature, hidden grudges are hard to spot. That’s a problem when a supervisor has it in for a subordinate. It’s a bigger problem if the boss is a closet bigot or otherwise harbors resentment against members of a protected class.
The possibility of hidden bias is what makes it so important to never base a termination decision solely on one person’s recommendation. If you do, you face the possibility that the supervisor’s illegal motivations will be ascribed to the company in a subsequent lawsuit.
The key is to cut the connection between the supervisor’s attitude and the company’s termination decision. To do that, assign someone with little or no interest in the outcome to conduct an independent investigation.
Recent case: Albert Hubbell worked for the Better Business Bureau (BBB) of Minnesota and told a number of other employees, including managers, that he had been diagnosed with bipolar disorder. He generally received good.
Sometime after Hubbell disclosed his mental illness diagnosis, the BBB began receiving reports that he was havingand behaving inappropriately. The organization investigated and concluded that there was nothing to the reports.
Later, it received another anonymous report noting further problems, including Hubbell’s use of company resources for his own personal affairs.
This time, the BBB conducted an independent investigation with the help of outside counsel. As part of that inquiry, investigators interviewed Hubbell. He initially denied misappropriating bureau resources but later admitted that he had made 30,000 copies of a flier for someone outside the organization. Based on the outside investigation, the BBB fired Hubbell.
He sued, alleging that the real reason was that he was disabled with bipolar disorder.
He argued that the manager who complained about him wanted to get rid of him because of his disability and that the bureau had acted on her “recommendation.”
The court didn’t see it that way. It said that the independent investigation into his alleged wrongdoing cut any link between Hubbell’s disability and his termination, and that the bureau had valid reasons to fire him. (Hubbell v. Better Business Bureau of Minnesota, No. 09-1173, DC MN, 2010)
Final notes: You don’t necessarily have to hire an outside firm to conduct an investigation. If your company is large enough, HR should be able to manage the investigation.
Make sure the investigation is thorough, but it doesn’t have to be exhaustive or bullet-proof. Follow these guidelines:
- The investigator should have free access to all employees and should conduct enough interviews to get a good overall picture. That doesn’t mean, however, that every employee has to be interviewed.
- Remember that the investigator does not have to prove wrongdoing beyond a reasonable doubt. That’s a standard reserved for criminal courts.
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- 10 Secrets to an Effective Performance Review
- Be patient and keep thorough records to make sure your firing decisions stick
- Consider criminal check for problem employees
- Employee/contractor question hinges on employer control
- Can you fire a poor performer who's on FMLA leave?