Never let fired employee unfairly blame bias; be prepared to prove performance deficiencies

Employees who have lost their jobs have very little to lose and everything to gain by suing their former employers. The same is true for lawyers thinking about representing them. A good plaintiff’s attorney will gladly delve into your business, looking for the basis of a potentially winning lawsuit.

Something as isolated as a super­­visor’s outburst impugning the em­­ployee’s ancestry, religion, race or national origin may launch a lawsuit.

Your best defense when firing: Al­­ways carefully document a performance-related reason for the termination. That will trump all but the most egregious cases of supervisory expressions of bigotry.

Recent case: John Feeney went to work for Jefferies & Co., as a senior vice president. After six months, he got his first review. It indicated that his supervisor was not pleased with Feeney’s communication style. Feeney signed the evaluation and added a note that said he had “made a personal commitment” to improving his communications skills.

Apparently those skills did not im­­prove, because Feeney began keeping a diary in which he catalogued what he perceived as harassment. He claimed the supervisor often lost his temper and exclaimed several times that Feeney would be lucky if he still had a job by the end of the day.

Then Feeney was placed in charge of a big project involving a newly acquired account. The computer soft­­ware Feeney was supposed to use to manage the project had bugs, which Feeney didn’t report right away to his supervisor. This was the final blow as far as his boss was concerned. At the supervisor’s recommendation, Feeney was fired for not communicating about problems in a timely manner.

Feeney sued, alleging that the real reason he was terminated was his Irish ancestry.

That was when, for the first time, Feeney alleged that the supervisor had called him an “Irish c…sucker.” He also pointed out that he had been replaced by an employee with an Italian surname.

The company asked the court to toss out the case. It argued that even if the supervisor had used the slur, that wasn’t enough to counter the legitimate, documented reason for Feeney’s termination. The court agreed and dismissed the case. (Feeney v. Jefferies & Company, No. 09-2708, DC NJ, 2011)

Final note: In this case, HR never knew about the alleged ethnic slur. That may be because it never happened. But even if you do get an employee report that a supervisor has used language that isn’t appropriate, that doesn’t mean all is lost. You must, however, act fast.

Take the allegation seriously and launch an investigation. Tell the em­­ployee you are doing so. If it turns out the employee is right, it’s time to discipline the supervisor. Depending on what you discover during the in­­ves­­tigation, that may even mean ter­­mi­­nation. If it was truly a one-time incident, a warning may be sufficient.

Then tell the employee to report any further problems directly to HR. Check back regularly for an update. That way, you can readily show that your organization did all it could to prevent further problems.

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