Tell managers: Unless you have notes, you can’t terminate

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

The quickest way for an employer to get into big trouble is to retaliate against an employee who files a discrimination charge. Any negative employment action after the charge is filed may mean an additional lawsuit.

And even if the underlying discrimination case amounts to nothing and is dismissed, the retaliation charges may stick. Instruct managers to document any alleged poor performance—and make sure they use only objective, concrete measures. Then, review the information before making any decisions on employment status. Under no circumstances should the decision be based on oral complaints, or informal “surveys.”

Recent case: Dayton Rogers Manufacturing hired Michelle Carter as the HR director. She received about $30,000 more per year than her male predecessor, who had been vice president of HR. Carter didn’t get the VP title, which meant she also didn’t get a company car, a perk reserved for VPs.

When Carter found out her predecessor had a car, she began pestering her boss for one. Eventually, she filed an internal sex discrimination complaint. That’s when her boss, who had given her sterling reviews until she accused him of sex discrimination, started asking around about her performance. He conducted an informal “oral survey” that found few managers trusted Carter’s HR advice. Then he fired her.

In court, he said he had never taken any notes on those conversations, but admitted the feedback he received was one of the reasons he terminated Carter.

The court dismissed the underlying sex discrimination lawsuit, reasoning that there was no evidence that withholding the car had anything to do with Carter’s sex. Plus, she got a starting salary far higher than her predecessor was earning when he left.

But the court let the retaliation case go forward, largely because of the timing. The court said it was suspicious that the boss who stood accused of discrimination began seeking feedback on Carter—and didn’t have any notes to back up his claims. (Carter v. Dayton Rogers Manufacturing, No. 07-1464, DC MN, 2008)

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