I thought we’d all learned our lessons from misguided politicians and CEOs to quit exchanging e-mails that are loaded with evidence of discrimination. Apparently for some, the lesson isn’t over until it’s learned the hard way …

Case in Point: Elizabeth Parks was a 62-year-old editor for a trade magazine, Drug Store News. She’d worked for the company for 25 years. But in recent years, the company’s focus had shifted to writing more about beauty and health issues and it preferred younger writers. The company began hiring only young women to fill editor and reporter vacancies, with the four newest employees ranging from 23 to 33 years old.

In the spirit of this new focus, a senior manager sent an e-mail to HR to immediately “set in motion” a “scenario” to justify Parks’ termination. In response, HR employees exchanged e-mails discussing possible rationales for firing Parks.

They crossed off the idea of a reduction in force justification, saying it could lead to litigation. Instead, an HR employee sent an e-mail suggesting “this is a performance issue.” Following that lead, managers exchanged e-mails saying Parks was “not producing the quality of work that the company expected of senior editors."

Over the next 15 months, Parks’s supervisors documented every performance weaknesses and eventually fired her. Parks sued under the Age Discrimination in Employment Act of 1967 (ADEA), which protects employees and applicants age 40 or older from age bias in the workplace.

The company tried to get the case dismissed by arguing that it had 15 months of documented proof she was fired for legitimate business reasons based on poor performance. Did the court buy it? (Parks v. Lebhar-Friedman Inc., 10/2/08).

What happened next and what lessons can be learned?

The court sided with Parks and sent the case to trial. It cited the many inconsistencies in Parks’ treatment. Before she was fired, the company had already crossed her name off the org chart and replaced it with that of a substantially younger employee.

Two weeks before she was fired, a senior manager sent a memo to Parks’ supervisor indicating that a client “absolutely loved” one of her columns and “couldn’t stop raving about the accuracy of the interview.” A week later, she received a performance evaluation acknowledging that “by and large Parks may have met company standards.”

3 Lessons Learned … Without Going to Court

1. E-mail is an everlasting exchanges of evidence. Okay, duh. But some people still don’t get it, so we are spelling it out again: E-mail, blogs, instant messages and text messages are all discoverable in litigation.

2. The “Fish Test” still rules. Judges put the facts of cases under their noses, and if it stinks they’ll let a jury decide your fate. Juries award plaintiffs victories more often than judges do in bench trails. The only way to avoid employment liability is to avoid making any employment decisions based on protected characteristics, such as age, race, national origin, ancestry, disability, religion, etc.

3. Provide e-mail etiquette training in 2009. Employers should teach all employees the best practices for keeping their hands off the keyboard when it comes to legal compliance issues. They also should avoid using “code” expressions that litigation-sensitive software will pick up and report on.

E-mail messages that ask the question, “Is what we are doing illegal?” begs for a lawsuit. In this case, the entire e-mail exchange was traceable and provided the necessary “smoking gun” evidence against the employer.