Faced with a performance problem, too many employers seize on the first reason to discharge an employee instead of thoroughly reviewing the person’s work and documenting any problems in his or her file. That’s fine, if the firing rationale stands up to scrutiny and the employee doesn’t sue.
But if the employee claims some form of discrimination, you want the reason you chose to be rock-solid. You can’t simply go back and find other deficiencies, use those to support your decision and expect it to go unchallenged.
A clever attorney will attack your stated reason, saying it was a pretext for discrimination—and you won’t be able to raise those legitimate job deficiencies you found later. In fact, the judge may think all the new reasons are more evidence of pretext.
Recent case: Terry Brettner was 52 years old when he was hired as a senior project manager for Colonial Pipeline. Many other project managers were under 40.
All went well for several years, until Brettner found himself reporting to a younger supervisor. Although Brettner had earned excellent, this supervisor put him on a performance improvement plan.
Brettner cried foul, claiming he was being targeted because of his age. He suspected the supervisor wanted to get rid of him and promote younger project managers.
The manager fired Brettner because he allegedly couldn’t effectively delegate authority. But his employee file showed this had never been a concern before. Brettner sued, alleging the stated discharge reason was a pretext to cover up the real reason—age discrimination.
It was then that the company came up with other reasons for its decision. But it was too late. A memo about Brettner’s delegation skills was panned by the judge as “of dubious origin.” Other “proof” also was dismissed as bogus. The case now will go to trial. (Brettner v. Colonial Pipeline Company, No. 1:06-CV-0764, ND GA, 2007)
- Women-hating comments, even if not sexual, can equal sexual harassment
- Lower-level bias can illegally taint firing decision
- Riker's Island sexual harassment case results in $1 million judgment
- Erie, Pa. restaurant settles harassment case for $20,000
- When employee sues for discrimination, be prepared to show your processes are solid