You’ll rarely lose a termination-related lawsuit if your handbook contains clear rules that you follow consistently. That’s because when everyone who breaks the same rule is equitably disciplined, fired employees will have a hard time finding workers outside their protected class who were treated more favorably than they were.
Recent case: James Gibson is black and worked for the American Greetings Corp. for several years until he was fired under a progressive disciplinary system.
The rules were spelled out in the employee handbook. Gibson accumulated five disciplinary actions, earning an automatic discharge. His infractions included not calling in before missing work and safety violations like almost hitting a co-worker while operating equipment.
He sued, alleging race was a factor.
But Gibson couldn’t show that American Greetings had not fired any other employees who violated the rules as often as he did. The case was dismissed. (Gibson v. American Greetings Corporation, No. 11-1467, 8th Cir., 2012)
Final note: The fact is that you will never know which employee you fire will sue you and for what reason. And everyone belongs to multiple protected classes.
By treating all employees alike and making everyone adhere to the rules or face the consequences, you automatically protect yourself against claims that you discriminated against someone on account of his or her protected characteristics. You’ll never have to worry about which employee will sue because no one can successfully accuse you of bias.