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Cut lawsuit risk by filling vacant position with similar person

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in Discrimination and Harassment,Firing,Human Resources,Leaders & Managers,Management Training,Performance Reviews

Employees who lose their jobs often look for sinister underlying reasons—such as discrimination. That’s why you should think about a strategy to minimize the chance a disgruntled employee will win a discrimination lawsuit.

Here’s one way: Fill the vacant position with someone from the same protected class as the terminated employee.

If they don’t have direct, smoking-gun evidence of discrimination, employees who claim they were fired for discriminatory reasons must prove what’s called a prima facie case. To do so, they must show:

  • Membership in a protected class (e.g., age, sex, race).
  • An adverse employment action, such as discharge.
  • That they were meeting legitimate expectations.
  • That the position either remained open or was filled by a similarly qualified person outside the employee’s protected class.

The best way to counter discrimination suits is to have well-documented evidence of poor performance. If that’s not possible, fill the position with a member of the same protected class who is also well-qualified.

Recent case: Kathleen Garrow worked for Economos Properties and was a star performer. But when she told management she wanted to transfer to another hotel out of the state because her husband had accepted a job in Florida, management cooled to her. Shortly after, she was fired.

In the lawsuit that followed, she charged sex discrimination. She had no direct evidence of discrimination, so she had to use the four-point test outlined above. The company couldn’t argue it fired her because she was a poor performer, so it focused on whom it hired to replace her. In this case, it was another well-qualified female. That sunk Garrow’s case. (Garrow v. Economos Properties, No. 06-1128, 4th Cir., 2007)

Final note: There’s nothing wrong with firing an at-will employee you know is planning to leave the company. But if the employer had replaced Garrow with a less qualified male, the case would have gone to the next level. Instead, it was dismissed early on. 

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