If a supervisor believes an employee has such a negative attitude that it warrants firing, do your HR duty! Immediately ask for documentation of the problem. It can’t wait until after the termination occurs.
After-the-fact, subjective assessments may not survive a court challenge.
Recent case: Peter Kost, who is white, was hired as a welfare worker trainee. Most of his co-workers and all of his immediate supervisors were black. Kost was shortly fired for what his bosses called disruptive behavior and refusing to follow directions.
Kost sued, alleging race bias.
He testified that he heard one of his black supervisors say, “I hate the fact that these people are veterans ... majority of them are white, and they never work out.”
Co-workers said they never saw Kost being disruptive. Plus, Kost said another black supervisor responded to his racism complaints with, “Look around you. OK. Who’s my boss? What color is she? Who’s her boss? What color is she? … How does it feel to have the shoe on the other foot?”
The supervisors offered examples of Kost’s attitude to explain why he was fired, but hadn’t documented them at the time they allegedly occurred.
Between the alleged anti-white statement and the lack of contemporaneous documentation of, the court concluded Kost had cast enough doubt on his discharge to warrant a trial. (Kost v. DPW, et al., No. 07-2404, ED PA, 2011)
- Don't withhold promised severance when a former employee files suit
- Be prepared to show business necessity if hiring rule excludes members of protected class
- Judge to lawyers: Enough 'pettifoggery and piffle!'
- Think twice before refusing telecommuting-- it could be an adverse employment action
- Appearances do count: Check for hidden bias in terminations