Proven way to win shaky bias suits: Be specific about reasons for discharge

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in Discrimination and Harassment,Employment Law,Firing,Human Resources

Discharged employees who sue over alleged discrimination often must prove that the reason their employers gave for firing them was really a cover for discrimination.

They can do that by pointing to other employees who don’t belong to their protected class who were not fired for the same conduct or rule violation.

If you’re very specific about your reason for terminating an employee, you’re likely to win these kinds of lawsuits. That’s because the employee will have a hard time finding someone to compare himself with. Unless you discharge many employees, chances are most were fired for various reasons.

Recent case: Troy Jones, who is black, worked as a manager at a CVS store and was warned that he might be discharged if he didn’t carefully follow bank deposit rules. Then a deposit he was supposed to make disappeared; the bank said it never received it in the deposit box. Meanwhile, Jones had been transferred to another store. When he was finally tracked down, he refused to cooperate in the investigation.

CVS fired him for being uncooperative during the investigation, something the employee handbook specified as a dischargeable offense.

Jones sued, alleging race discrimination.

CVS told the court it had fired him for breaking the cooperation rule. Jones then had to show that others who were not black had not been fired for being uncooperative. There were no employees who fit that criterion, so he lost the case. (Jones v. CVS Pharmacy, No. 07-3878, DC NJ, 2008)

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