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Relying on evidence to back up termination? Don’t lose it

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in Discrimination and Harassment,Human Resources

As the saying goes, a picture is worth a thousand words. In the workplace, so is an incriminating videotape of misbehavior or an employee’s confession of wrongdoing. When you catch an employee red-handed breaking a rule and you have solid evidence on your side, it seems like a no-brainer to fire him.

But when you do, keep this in mind: If you lose that incriminating tape, e-mail or handwritten note, expect to lose the case.

Recent case: Randy Rhea was a model Wal-Mart employee, got excellent reviews and was cited for being a “good team player.” But then a co-worker told supervisors that Rhea backed up behind her, bumped her buttocks with his and told her to “move your fat ass.”

Managers reviewed a surveillance tape and apparently concluded something was amiss. Without speaking with Rhea first to get his side of the story, and without allowing him to review the tape, the company fired him immediately for breaking its sexual harassment policy.

Rhea, who denied the allegations and said he simply tapped the co-worker on her shoulder to get her attention, sued for sex and age discrimination under both Title VII and Michigan’s Elliott-Larsen Civil Rights Act.

Fast forward to court: Wal-Mart said it could not find the videotape that supervisors had used to fire Rhea. Because the tape was missing, and Rhea never viewed it, the court inferred that what was on the tape did not support Wal-Mart’s decision. The court said the case should go to trial. (Rhea v. Wal-Mart Stores, No. 06-13617, ED MI, 2007)

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