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How to win discrimination lawsuits: Carefully document real performance problems

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in Discrimination and Harassment,HR Management,Human Resources

Smart employers carefully track performance over the long haul—not just when a manager decides he’s had enough and wants to terminate an employee for poor performance.

It’s important to lay the groundwork early on, especially if a new hire has obvious performance problems right after coming on board. Immediately document those issues, even if you think the employee may improve as he learns the job.

HR should take charge of those interim performance appraisals. Establish a protocol for evaluation. If problems are obvious, develop a performance improvement ASAP and follow through.

This is especially important if the employee ends up with a new supervisor who wants immediate action. If a termination results, your records will help support the decision and cut off one of the employee’s litigation strategies: alleging that the new supervisor harbored some illegal discriminatory intent.

Recent case: David was hired as a warehouse supervisor, where he managed workers who loaded pallets of sugar onto trucks for shipping. He was fired 18 months later after his new supervisor allegedly told David in front of co-workers, “Hell, …you’re old. We can all see that.”

Predictably, David took the comment as proof his subsequent termination was really the result of age discrimination. He sued.

But the company was ready to defend itself. It provided a pile of evaluations going back to shortly after David was hired. They showed that from very early on, David wasn’t performing as well as the company expected. He was rated poorly on many essential job duties, including managing subordinates, meeting daily truck loading quotas and controlling inventory.

The records also showed that the employer had patiently provided additional training, along with praise for David when praise was due. That is, the records showed a balanced approach to managing David, criticizing him when his performance failed to meet standards, but also praising him when he met quotas and managed well. The record showed little difference between David’s earliest evaluations and those he received after the allegedly age biased supervisor took over.

The court dismissed David’s case, concluding the problem had been his poor performance, not age discrimination. (Rey v. C&H Sugar, American Sugar Refining, et al., No. 10-01970, ND CA, 2012)

Final note: One age-related comment isn’t enough to sustain a lawsuit, but it can be enough to get a lawsuit going. Don’t risk it. Instead, train all new managers and supervisors on age discrimination and what constitutes an age-hostile environment.

Ban all comments about age, whether negative or positive. The best approach is to foster a work environment where everyone is treated with dignity and where workplace performance problems are addressed with specific examples of poor performance and an opportunity to improve.

Smart employers also provide ex­­amples of good performance, praising even employees who aren’t doing as well as was expected. Re­­warding good work not only increases the chances that the em­ployee will perform better, but also paints a picture of a sincere and honest employer, should it ever become necessary to terminate the worker.

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