Here’s a simple way to prevent lawsuits when you have to fire a recently hired employee: Direct the person who hired the employee to also do the firing.
If the employee belongs to a protected class, courts will conclude that the termination wasn’t discriminatory. Otherwise, why would the employee have been hired in the first place? If the same supervisor who actually hired the employee then fires the employee, there will be an even stronger presumption that there was no discrimination at work.
To take advantage of this presumption, you need a standard process for evaluating and terminating new hires who don’t perform well. Having the hiring manager do the firing is an important part of that process.
Note: This may not always be practical when terminating a longer-term employee, but it’s certainly a good tactic for newly hired ones.
Recent case: William Baker, who is black, interviewed for a position with a real estate company. A committee consisting of the company president, the company’s owner and the property manager for whom he was scheduled to work for hired him.
Baker’s initial months did not go well, although he rated himself very highly. At his 90-day review, the property manager concluded Baker was not completing projects in a timely way, seemed to be falling behind in learning the job and generally didn’t follow company rules. The manager warned Baker his job was in danger.
Over the next few months, other complaints came streaming in. One tenant said Baker made inappropriate comments to her. Another said she did not want to be around Baker because he made her feel “uncomfortable.” Yet another said he asked her whether she had a man in her life.
The three who had hired Baker concluded he was not working out and fired him. He sued, alleging race discrimination since a white male replaced him.
But the court said that it made little sense for three people to hire a black person and then turn around and fire him because he is black. Against the presumption that there was no discrimination, Baker had no proof to the contrary. (Baker v. Gerdenich Realty, No. 3:08-CV-36, ND OH, 2009)
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