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Employee concedes shortcomings? Document it!

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Performance Reviews

Employees who lose their jobs have an incentive to sue—and they’ll often look for evidence of discrimination to form the basis of their lawsuits.

But to win in court, employees have to show they were meeting their employer’s legitimate expectations.

That’s hard to do if the employer can show the employee admitted her shortcomings. Keep track of those admissions. They could come in handy in court.

Recent case: Susan Pennington was hired as a manager with the Texas Department of Family and Protective Services. Almost immediately, her boss noticed that Pennington didn’t seem quite up to the job. She missed deadlines, forgot to notify others of conference calls, submitted sloppy paperwork and generally underperformed. When confronted, Penning­­ton agreed that her work could use im­­provement, but offered excuses galore.

After Pennington went over her supervisor’s head about a personnel matter, she was asked to resign due to poor performance.

Pennington did resign, but then sued, alleging she had really been fired for opposing pregnancy discrimination in the department and uncovering alleged race-based wage disparities.

The court dismissed her case, concluding that Pennington never showed that poor performance wasn’t the reason she lost her job. The court pointed out that she admitted many of her mistakes, which showed she wasn’t meeting her employer’s legitimate expectations. She got no further. (Pennington v. Texas Department of Family and Protective Services, No. 11-50003, 5th Cir., 2012)

Final note: Be very specific when discussing poor performance. Put it in writing and suggest ways to do better. Have the em­­ployee acknowl­­edge the need to improve and have her initial the im­­provement plan.

That helps the employee improve her performance if she chooses to—and gives you solid documentation to fall back on should a dispute wind up in court.

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