If a fired employee sues your organization, alleging discrimination, you’ll probably want to argue that the real reason was the employee’s poor work performance. Maybe you’ll want to claim that it was a mistake to hire the employee in the first place; that had you known about past, you wouldn’t have hired the employee at all.
Well, don’t expect the court to let you go on a fishing expedition into the employee’s past. As this case shows, courts think past performance is no indication of future results. They won’t let you dig for proof the employee was a dud before you hired her.
Recent case: After being terminated, Jennifer Vuona and several other female financial advisor trainees sued Merrill Lynch. They claimed the company had a preference for male financial advisors.
Merrill Lynch sought permission to subpoena the women’s past employment records. It alleged that those records would show that the women were generally poor performers and that would prove the company was right to determine they should be let go.
The court rejected the request. It reasoned that how an employee was evaluated at another job was irrelevant to performance at a new job. (Vuona, et al., v. Merrill Lynch, et al., No. 10-Civ-6529, SD NY, 2011)
Final note: On the other hand, the court did allow the women access to most of the employment records for advisors who weren’t laid off.