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Require HR review of disciplinary records before discharge

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

Nothing will send a discrimination case to trial faster than obvious unequal treatment of employees. That’s why it is important to have someone in HR do a complete review before the company discharges someone for poor performance or rule violations.

Make it a thorough review. Analyze all recent disciplinary actions and performance assessments that the employee’s supervisor has been involved with. That way, your organization will be able to independently evaluate any discrepancies in how discipline was imposed and uncover any evidence of unfair treatment before it’s too late to prevent a lawsuit.

As the following case shows, sometimes all it takes to prevent a successful lawsuit is to clearly explain why one employee was disciplined and not another for the same or similar conduct.

Recent case: The U.S. Postal Service hired Thomas Gaffney, who is white, as a temporary letter carrier during the holiday season. At the same time, the Postal Service also hired a black male as a temporary carrier. Both had trouble delivering mail in a timely fashion, and both lost their jobs. But while the Postal Service fired Gaffney almost immediately after his 30-day review, the black carrier worked for an additional 28 days before he was terminated.

Gaffney sued for reverse discrimination, noting that all the supervisors were black. He argued they kept the black temporary carrier on longer to give him more chances to improve.

Fortunately, the service could show different performance evaluations for each man. While Gaffney failed to meet the standards on four out of the six criteria, the black carrier was deficient in just three areas. The court said that was enough of a difference to justify his longer tenure. (Gaffney v. Potter, No. 1:06-CV-2444, ND OH, 2007) 

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