Reasonable employers always fare better in court than unreasonable ones. That’s one reason to keep careful disciplinary records showing everything you did to help an employee perform well despite obvious problems.
If he’s ultimately terminated, the court probably won’t second-guess the decision.
Recent case: Earl worked as a porter, handling trash and recycling in the compactor room in a commercial building. During his short career, he accumulated an impressive disciplinary history.
He was often warned for being late, riding his bike in the building and generally not getting his job done during working hours.
Earl was suspended twice for his. Finally, following numerous warnings, he was terminated when he brought his two young children to work and left them unsupervised while he went about his daily tasks.
Earl sued, alleging race and national-origin discrimination.
He didn’t get far. Earl couldn’t show that other workers brought children to work and left them unattended or were late as often as he was without being disciplined. His lawsuit was dismissed. (Forsythe v. Amalgamated Warbasse Houses, No. 10-CIV-2549, SD NY, 2012)
Final note: Before making a final termination decision, compare the punishment to what other employees received for similar conduct. If someone outside the employee’s protected class earned a lesser sanction, make sure you note why this case is different.
If you can’t, then termination may not be the wisest decision. Instead, consult with your attorney on the best way to proceed.