Make this a mantra in your organization: The same person who hired an employee should be the one to fire him if necessary.
Here’s why: The terminated employee will have a hard time alleging he was terminated because he belongs to a protected class if the same person who hired him also fired him. After all, why would a manager hire someone—knowing of his membership in a protected class—only to turn around and fire him because of that minority status?
Of course, this won’t work if the protected classification isn’t obvious or known to the hiring manager.
Recent case: Joseph Madonia, who is white, was hired to work at BP. The manager who made the initial hiring selection is not white and is the only nonwhite manager at the BP facility, where most workers are white. He took Madonia under his wing and served as a mentor.
But then Madonia began getting complaints about his communications style and customer service. His performance reviews outlined the problems. Finally, the hiring manager placed Madonia on a performance improvement plan. Madonia was finally terminated following another customer complaint. The same nonwhite hiring manager made the final decision to terminate Madonia.
Madonia sued, alleging reverse discrimination.
But the court quickly tossed out his case. It reasoned that in a workplace consisting mostly of white employees, it didn’t make sense that any manager—white or not—would hire someone knowing his race and then later fire that same employee because of his race. (Madonia v. BP Products, No. 09-CV-7779, ND IL, 2011)
Final note: This tactic will only work if you use it consistently. You can’t, for example, switch up a different practice to block a potential lawsuit byfiring authority to the hiring manager.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Questionable conduct? End it and move on
- Sorry, it's never acceptable to make jokes comparing employees to animals
- Understand GINA's new prohibitions on misuse of genetic info
- Employee complains and then quits? Investigate anyway, to prove what happened