When faced with negative reviews and worried about losing their jobs, some employees file internal discrimination complaints in an effort to avoid discipline. Don’t play that game!
Investigate the complaint. If you conclude it lacks merit, continue the disciplinary process and proceed with any decisions that are appropriate, up to termination.
Otherwise, any employee could save his job just by making frivolous, unfounded charges.
Recent case: David was hired as a program manager for an engineering company. Within months, his supervisor became dissatisfied with David’s efforts, gave him a negative review and suggested David might be placed on a performance improvement plan.
He also apparently stated that even a junior employee could do a better job than David was doing.
David jumped on the comment and complained to HR that he was being discriminated against because of his age. (He was 59 at the time.) He took the statement as a preference for younger workers.
HR promised to investigate. After speaking with the supervisor and other employees, HR concluded there was no age discrimination going on.
Meanwhile, David’s supervisor continued to question his work. He recommended termination when he did not see any improvement in David’s performance.
David was fired and sued, alleging age discrimination and retaliation, among other claims.
The court threw out his case. It concluded that the company had legitimate business reasons for discharging David and that he hadn’t shown that complaints about his performance were excuses for discrimination or punishment for going to HR with the alleged age discrimination complaint. (Manner v. Intevac, No. H038979, Court of Appeal of California, 2015)
Final note: Always investigate every discrimination complaint using the same process, even if you suspect the employee is just trying to delay or derail legitimate discipline.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Make sure your promotion process gives all qualified candidates enough time to apply
- Track declining productivity to justify staffing, pay and promotion decisions
- Fair investigation all that's needed to support discharge
- Appeal of firing doesn't give worker more time to sue