The time to prepare for a discharge lawsuit is long before it’s filed. Know that someday, someone will sue you. Prepare accordingly. You won’t know who will sue, or what protected class they will belong to, so you should cover all your bases.
That means tracking the progress of every employee and every disciplinary action you take, no matter who the employee is. That way, you can slice and dice your data to spot any suspicious patterns ahead of time. Do many members of a particular protected class do poorly on promotion exams? Look for problems with the test. On the other hand, if there seems to be no clear pattern as to who fails and who scores well, there’s no problem.
Recent case: When physician Lisa Brown was not invited to return for the fourth year of a five-year orthopedic surgery residency, she thought it was because she was a woman. But the hospital where she was doing her residency said it had many reasons for not renewing her contract.
It said she wasn’t performing as well as she should, neglected patient care and scored increasingly worse on yearly national orthopedic exams designed to test core knowledge at each stage of the residency. In fact, Brown’s final-year scores were among the lowest nationwide.
She sued, alleging the hospital treated male doctors more favorably and gave them more chances. But none of the men scored anywhere near as poorly as Brown did on the exams. The court dismissed her case, concluding that her poor clinical performance and low scores were valid reasons for terminating her participation. (Brown v. Hamot Medical Center, No. 05-32E, WD PA, 2008)
Final note: It helped that the hospital used a national test designed by orthopedic experts.