Special performance measures deviate from usual practice? Be sure to document reason

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in Discrimination and Harassment,Firing,Human Resources

Courts don’t want to second-guess employers unless they feel they have no alternative. When an employee charges discrimination based on different treatment because he belongs to a protected class, the court first looks at the employer’s rules and tries to see if they have been enforced consistently.

That doesn’t mean employers have no discretion to deviate from their rules. The key is to document in writing why one employee was treated dif­­ferently than another at the time the decision was made. You don’t have to justify your decision to anyone, but you do have to maintain the rec­­ords in case you need to explain later.

Tip: Conduct your own informal survey to discover bias that may be hidden. Audit for age, race, sex, etc., to make sure there’s no pattern of discrimination. If you see anything amiss, look deeper right away. Then ask your attorney for advice.

Recent case: John Paniccia, who was older than 40 at the time, was fired from his job with Verizon Wire­­less for missing his sales quotas.

The company had a complicated system for measuring sales and a progressive discipline system that called for termination after an employee missed his or her sales quotas for a total of five months. Employees could, however, reset the termination clock by meeting their quotas for six months in a row, effectively starting the process all over again.

Paniccia sued, alleging age discrimination. He said a younger employee should have been fired under the progressive discipline system, but kept his job anyway.

Paniccia claimed the younger salesperson first missed his quota for four months and never man­aged to follow that with six successful months. Yet Verizon retained him.

The company was prepared with solid documentation to explain why it hadn’t fired the younger employee. Sales records showed he had indeed failed to meet his quota for six straight months. However, there was a legitimate reason why: The em­­ployee was out on approved leave for 10 days, which made it impossible for him to meet the goal.

The court said the explanation was adequate to explain why the younger employee wasn’t fired.

Verizon also showed the court that it terminated many salespeople under the same rule. Of 23 employees dismissed over an 18-month period, 19 were under age 40. Of those, 11 were under age 30. (Paniccia v. Veri­­zon Wireless, No. 09-CV-6664, WD NY, 2012)

Final note: What are some valid reasons for deviating from rules re­­­quiring employees to hit sales targets? For one, anyone taking protected FMLA leave cannot have that counted against him in any way, including meeting sales and other quotas. Doing so would violate the law.

In addition, disabled employees may be entitled to reduced quotas as a reasonable accommodation under the ADA. They may also be eligible for time off as an accommodation. Treat that leave just as you would FMLA leave.

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