Nothing raises suspicion among judges and juries more than inconsistent explanations. For example, shifting reasons for firing someone can backfire. You’re courting trouble if the employee filed a discrimination claim with your HR office or the EEOC or sued your organization before being fired.
The key to a clean discharge—especially when the employee has filed discrimination charges—is picking a legitimate reason for firing the employee and sticking with it. Otherwise, a judge or jury listening to your explanations may think you are trying to cover up the real reason, and that the reason is retaliation for complaining in the first place.
Recent case: Juan Pantojo, who is Hispanic, was fired because of supposed job. But Pantojo had already filed an EEOC complaint about alleged national-origin discrimination and thought he had been fired in retaliation.
When the case went to court, the employer offered one reason after another, including “repeated,” “unsatisfactory work record” and “leaving work without permission.” The shifting rationales led the court to suspect retaliation was the true reason. The 7th Circuit Court of Appeals dismissed the original national-origin claim but sent the retaliation claim back for a jury trial. (Pantojo v. American NTN Bearing, No. 06-1252, 7th Cir., 2007)
Final note: Remember, retaliating against someone who files an unfounded discrimination claim is just as bad as discriminating in the first place. Even if you get the original case tossed out, you’re still on the hook for retaliation. Feel free to discipline for reasons you can substantiate. But tell managers and supervisors: Don’t do anything that smacks of vengeance.
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