Conventional wisdom holds that employers won't face strict scrutiny if they fire employees who aren't meeting performance expectations during their probationary period.
Conventional wisdom is wrong, at least when it comes to the Pennsylvania Human Relations Commission (PHRC).
To determine if discrimination came into play, the agency will often do a point-by-point comparison between probationary employees who kept their jobs and those who were terminated.
That's why employers should be prepared to present detailed records about probationary employees and the criteria used to retain or discharge them.
Recent case: The Pennsylvania Department of Revenue hired Brenda Burney, a black female, as a part-time clerk to process tax forms. All clerks serve a 180-day probationary period before being hired as permanent employees.
When Burney wasn't retained, she filed a PHRC complaint alleging race discrimination.
The agency held a public hearing and compared her performance with a white female hired for the same position on the same day.
Both employees were warned early that they weren't processing forms fast enough and were taking too much time off. However, the white employee, whose performance numbers had been lower than Burney's at the initial evaluation, improved more than Burney did.
After comparing absences down to the minute and computer keystrokes per hour, the PHRC concluded that the white employee was marginally better than Burney. It dismissed the complaint. (Burney v. Pennsylvania Department of Revenue, No. 199902863, PHRC, 2006)
Final tip: Nothing is magical about assigning probationary status to employees. Be prepared to show that probationary employees were treated equally, and keep the same records as you would for every other employee.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Supreme Court outlook: 4 key employment cases to watch
- When conducting bias investigations, you don't need to be perfect--just reasonable
- When contesting timeliness of lawsuit filing, remember to factor in weekends, holidays
- Judges' race and gender may affect bias rulings