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‘Soft’ termination rationale increases chance of jury trial

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in Discrimination and Harassment,Firing,Human Resources,Leaders & Managers,Management Training

Does your disciplinary policy call for dismissing employees who coerce or intimidate other employees? Understand that firing an employee for violating such rules might make a jury trial more likely.

Here’s why. Rules that punish subjective behavior require employers to make judgment calls based on “he said, she said.” If the discharged employee is a member of a protected class, he or she can argue the employer used the rule to cover up discrimination.

Courts rarely interfere with an employer’s decision to terminate for concrete reasons, such as unexcused absences or poor work. But when the reason is subjective, they often want a jury to decide whom to believe.

Recent case: James Macon was a restaurant manager. When one of his employees fell from a ladder, the two discussed whether she should fill out an accident report, as company policy required.

The employee didn’t fill out the report until several days later, and upper management wanted to know why. The employee said she was coerced into not reporting the accident to preserve a “safety bonus.”

Management believed the employee and fired Macon for violating a rule against “intimidation and coercion.” Macon sued for sex and age discrimination, and the court said a jury should decide whether the real reason was discrimination. Because of the subjective reason, there was cause to doubt the employer. (Macon v. King’s Family Restaurant, No. 06-300, WD PA, 2007)

Final note: It would have been far better to discharge the manager for violating the “report all accidents” rule. It’s a clear-cut standard: Either Macon reported the accident, or he didn’t.  

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