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Beware shifting explanations for firing

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in Firing,Human Resources,Leaders & Managers,Performance Reviews

If you have to terminate an employee, don’t fall into a trap that can easily lead to a lawsuit. If the employee is being let go for fiscal reasons, note that in your files—and include a thorough and detailed justification. Likewise, document it thoroughly if the employee is being terminated for performance issues.

Don’t, however, provide conflicting reasons or drop one when the employee or the EEOC asks for details.

Here’s why you need to pick a reason and stick with it: If other things have been going on (such as possible harassment or discriminatory statements), the court may view shifting reasons for the termination, plus the other events, as adding up to proof of discrimination.

Recent case:
Zafar Hasan, a Muslim of Indian descent, worked for a law firm as an associate attorney. He received good evaluations and plenty of work assignments before the Sept. 11 terrorist attacks.

Then things changed. First, on the day of the attacks, another attorney said he heard a law firm partner say, “Those people don’t belong here … they should kick them all out.” Then Hasan, who was interviewed by local newspapers about Islam, posted the positive articles on his door. That’s when another partner warned him to be “careful” and “not to upset any sacred cows.”

Then, Hasan began receiving fewer assignments and a series of poor evaluations. The firm terminated him. First it claimed it fired him for poor performance, but then cited economic reasons, claiming it didn’t have enough work.

Hasan sued, and the trial court tossed out his case.

Now the 7th Circuit Court of Appeals has reinstated the lawsuit. It said the anti-Muslim statements alone were not enough, but when they were added to the shifting explanations, the total picture was direct evidence of discrimination. (Hasan v. Foley & Lardner, No. 07-3025, 7th Cir., 2008)

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