When a former employee sues, alleging she was terminated because of sex discrimination, the employer often argues that the real reason was. It might claim that it was a mistake to hire the employee in the first place; that had it known about past poor performance, it wouldn’t have hired the employee at all.
Don’t expect the court to let you go on a fishing expedition into the employee’s past. As this recent case shows, courts think past performance is no indication of future results. They won’t let you dig for proof the employee was a dud before you hired her.
Recent case: Jennifer Vuona and several other women sued Merrill Lynch after they were terminated during a reduction in force. They had been financial advisor trainees and claimed the company didn’t use objective standards to pick who would stay and who would go. Instead, the women said, the underlying reason was a company preference for male financial advisors.
Merrill Lynch sought permission to subpoena the women’s past employment records. It alleged that those records would establish that the women were generally poor performers and that their past performance would help prove that the company was right to determine they were the ones who should lose their jobs in the RIF.
The court rejected the request. It reasoned that how an employee was evaluated at another job was irrelevant to performance at a new job. That’s because jobs differ, as do performance and evaluation standards. (Vuona, et al., v. Merrill Lynch, et al., No. 10-Civ-6529, SD NY, 2011)
Final note: On the other hand, the court did allow the women access to most of the employment records for Merrill Lynch financial advisors who weren’t laid off.