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Make termination decisions stick by documenting discipline at the time it occurs

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in Discrimination and Harassment,Firing,Human Resources

If you want a termination decision to stand up in court, make sure you carefully document all discipline that occurred before the firing—and do so at the time the discipline occurs.

Otherwise, chances are a court or jury may assume the earlier incidents didn’t happen. And that may mean they also assume that the real reason for termination was illegal discrimination.

Recent case: Carol Vaughn was hired to launch a WoodForest Bank branch located inside a Walmart store. Vaughn was the only white employee at the branch and supervised a staff of black tellers.

Vaughn was fired after one of the tellers complained numerous times about her racial attitudes. Vaughn sued, alleging she was really fired because she was white and was allegedly told to pay a black candidate more than a white candidate for the same job.

Vaughn’s manager testified that she had been fired for talking about race in the workplace and for using a racial epithet when disciplining a black employee. Plus, the manager testified that numerous earlier complaints helped her decide she should fire Vaughn.

It turned out that all the complaints—both documented and undocumented—had come from a single teller whom Vaughn was trying to discipline for late arrivals and poor work. That teller was eventually fired for those very reasons.

Vaughn argued that she never used any racial epithets herself (she said she was quoting the teller) and that conversations about race occurred in conjunction with President Obama’s election. Essentially, she claimed she was set up by an angry subordinate and that management found an excuse to terminate her for rocking the boat in a largely black workplace.

The court said the case could go to trial. It reasoned that a jury might believe the “numerous” complaints either didn’t happen or were simply used as a pretext to fire a white employee who was attempting to discipline a black subordinate. (Vaughn v. WoodForest Bank, No. 11-60102, 5th Cir., 2011)

Lessons learned: The bank made several fundamental mistakes. First, it didn’t routinely document discipline or employee complaints. Second, it performed only a brief and perfunctory investigation before terminating Vaughn.

When she sued, managers involved in the decision had to testify under oath about the decision-making process, but had little to fall back on because they didn’t document the “numerous” earlier complaints.

More fundamentally, why did the bank choose to side with a subordinate who had a poor track record and faced discipline without a thorough investigation into her claims? Perhaps someone thought terminating the white employee would appease the subordinate and prevent a lawsuit. Clearly, that wasn’t the case, since she was eventually terminated for poor performance.

Final note: Remember, everyone is a member of some protected class. Being male or female counts, as does being black, white, Hispanic, Asian, Native American, etc. Belonging to a religion counts, as does not belonging to one. Where one was born counts. So does disability and age.

Also remember that reverse-discrimination lawsuits are just as expensive to defend against as any other kind of bias litigation.

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