It’s never a good idea to “throw the book” at an employee just because a supervisor wants to get rid of her. That’s especially true if it turns out that the supervisor has been making ageist or other offensive comments about the employee and has been making her comply with rules that don’t seem to apply to others.
Before approving discipline, check to make sure this isn’t an illegal effort to terminate. Ask why the supervisor wants to fire the employee.
That’s especially important if she has been doing a good job and received excellentin the past. If the supervisor can’t provide a clear performance-based reason or economic argument unrelated to any protected characteristic, press for more information.
Recent case: Sharon, an older woman, worked for U.S. Bancorp until she was terminated for allegedly violating the bank’s so-called zero-tolerance rule against abusing company credit cards. Sharon apparently charged a personal cellphone plan, Internet access and other communications services to her company card.
Sharon sued, alleging that the real reason she was terminated was her age.
She recounted plenty of ageist comments her supervisor had made: that she “looked ridiculous for her age,” that her clothes were “inappropriate for her age” and that she wasn’t “taking care of herself.”
During pretrial discovery, Sharon’s attorney introduced evidence that U.S. Bancorp in fact had no “zero-tolerance” rule at all. Indeed, other younger employees had charged business suits and other expensive items to their cards with no consequences. Plus, the actual written rule seemed to allow for charging communications technology to the card if employees worked at home and on the road, as Sharon did.
Plus, once the supervisor told Sharon that she couldn’t charge the services, she tried to get them removed from the card but hadn’t completed the process by the time she was terminated.
The court said the combination of evidence—including the ageist statements, the fact that younger employees were retained even when they also appeared to have violated the credit card rules and the fact that Sharon was the only employee terminated for breaking the rule—was enough to send the case to trial. (Brockbank v. U.S. Bancorp, No. 11-35618, 9th Cir., 2013)
Advice: Could HR have prevented this lawsuit? Yes, by instituting clear guidelines for all discharges.
Insist on an unbiased review of all the stated discharge reasons. Conduct an internal comparison of all past discipline for similar rule violations, including an analysis of how those rules affect protected classes. Interview the affected employee so she can explain her position.
If you see problems with the proposed discharge, consult your attorney. He or she can provide additional advice and may recommend offering a severance package in exchange for a promise not to sue. That can be money well spent. Your lawyer can structure the offer to comply with special rules for older workers so the employee can’t take the money and still sue.
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