You’ve been dealing with a particularly difficult employee. He’s constantly claiming he’s being discriminated against in one way or another. But then he breaks a rule, and you spot your chance to fire him—of course, following all your internal procedures to the letter.
Finally! Now you can rest easy, believing the employee can’t possibly come back and successfully sue you. Guess again. Now he may be more likely to sue than ever, alleging discrimination and also tacking on a wrongful-termination claim.
Recent case: Forrest Lee, who is black, sued his former employer, the Casino Queen gaming resort, after he was fired for poor attendance. Lee claimed he had endured years of racial discrimination before finally being fired.
Casino Queen explained that Lee was fired because he missed work and didn’t call in. Lee agreed that he had, in fact, missed work because he overslept. He told the court that he assumed he had lost his job and therefore didn’t bother to call his supervisor or anyone else at the company.
He also admitted that three days after he missed work, his supervisor called him to inquire whether Lee was OK, presumably because he hadn’t shown up for days. But instead of explaining that he thought he had been fired for missing work, Lee simply told his boss he was fine and ended the conversation.
HR then sent Lee a letter telling him that if he did not call to explain his absence, he would be considered to have abandoned his job. He never called.
The court dismissed Lee’s claim that he had been fired because of racial bias.
But that wasn’t the end of the matter. Lee’s lawsuit also alleged that he had been humiliated by his supervisors, who frequently called Lee a “Chia Pet” and threatened to “water” him. Plus, Lee had obtained a doctor’s note recommending that he work only in the casino’s smoke-free areas. But Lee remained assigned to the worst smoking spots, while white employees got their choice of stations.
Those incidents were enough to justify a race discrimination trial. (Riley-Jackson, et al., v. Casino Queen, No. 07-CV-0631, SD IL, 2011)
Final notes: There are two lessons here. First, no manager or supervisor should ever joke about an employee’s appearance, especially if the “joke” has ethnic implications.
The second lesson is that you cannot count on a clean discharge to erase past discrimination. Instead, make sure you remedy any underlying problems before discharging an employee. Waiting to see if you can find a way to fire the employee without addressing his concerns is not a good idea.
For example, it would have been easy to check to see if white employees were assigned to nonsmoking areas more frequently than black employees. If that were the case, the casino should have come up with a fair method unrelated to race or other protected characteristics, such as a system based on seniority.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Let's talk politics (or not): Regulating political expression at work
- When applicant has more experience, be prepared to justify hiring someone else
- Employer--not vendor--is liable for fitness-for-duty exam GINA violations
- Job Descriptions