When employees sue you for discrimination, be sure to pull out their job applications and résumés for a second look. You may discover that they misrepresented their education or job history, which could sink their case.
Reason: To prove discrimination, a fired employee must first show he's in a protected class (minority, female, etc.), suffered an adverse employment action, received less favorable treatment than someone outside the protected class, and was qualified for the position.
This final requirement—being qualified for the job—is the one you can counter with evidence unearthed in your investigation, especially if it turns out that the employee lied about a qualification you considered essential to the job.
So, if you can show the court that the employee wasn't qualified for the job in the first place, that might quickly dismiss the case.
Recent case: A Brunswick, Ga., paper products company hired Olasupo Olagoke, a Nigerian, to do accounting work. Four months later, it fired him for incompetence, noting that he couldn't perform even basic accounting tasks or use a spreadsheet or e-mail. He sued, alleging racial discrimination.
When reviewing his files, the company found out that he never graduated from college, much less with the accounting degree listed on his résumé. Olagoke also claimed his GPA was a 3.0 when he barely broke 2.0.
The court tossed out his case, reasoning that he couldn't prove he was qualified for the job. (Olagoke v. Koch Cellulose, No. CV205-219, SD GA, 2006)
Final tip: Usually, you can't use evidence uncovered in a post-termination investigation to support the reason you fired the employee. But you can use it to prove he wasn't qualified for the job.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Insensitivity alone doesn't create a hostile environment
- Hired a dud? Double-Check that person's qualifications and sniff out exaggerations
- Case dismissed? You may be able to recover attorneys' fees
- Short illness does not an ADA disability make