Concerned that any discharge decision you make will be second-guessed by a court or jury? Ease that worry by adopting a fact-based approach to discipline that relies on easily proven and verifiable work problems.
Avoid generalities such as “just not working up to potential” or “not a team player and others have to pick up the slack.” Instead, go for the specifics, such as “He’s a skilled technician, but he has been tardy 10 times in two months, which means his co-workers have to take up the slack.”
Recent case: Henry Jean-Louis, who is black, worked as a hospital’s only full-time, nuclear medicine technologist. He was required to arrive early every morning to set up the equipment. If Jean-Louis arrived late, that meant the schedule for the day backed up by the time two part-time technologists arrived later in the day.
Jean-Louis clocked in more than 10 minutes late 38 times in 16 weeks, drawing repeated warnings. When attendance didn’t improve, the hospital fired him for tardiness. He sued, alleging that since he was the only black male working in the section, race discrimination had to be the reason.
The court tossed out his case. It said the time records showing consistent tardiness were more than enough evidence of. Jean-Louis could point to nothing indicating race discrimination. The hospital, however, could show it disciplined everyone who was late, and that Jean-Louis was tardy far more frequently than others. (Jean-Louis v. North Shore University Hospital, No. 06-CV-3023, ED NY, 2007)