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Tainted Terminations: Who Can You Trust to Evaluate Performance?
http://www.businessmanagementdaily.com/articles/18097/1/Tainted-Terminations-Who-Can-You-Trust-to-Evaluate-Performance/Page1.html
Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments. 
By Mindy Chapman, Esq., Mindy Chapman & Associates
Published on 3/5/2009 - 12:30pm
 
So you’ve had enough. The employee messed up big time again and you can’t take it any more. Thank goodness all your ducks have been lined up by a supervisor who documented previous poor performance. There’s even a “last chance” agreement in the employee’s file. What a gift! Go ahead and pull the plug. This is a worry-free decision, right? Not so fast, as a new court ruling shows. First, you better make sure the previous documentation was written by an unbiased supervisor. This begs the timely question: “Who can you trust any more?”
So you’ve had enough. The employee messed up big time again and you can’t take it any more. Thank goodness all your ducks have been lined up by a supervisor who documented previous poor performance. There’s even a “last chance” agreement in the employee’s file. What a gift!

Go ahead and pull the plug. This is a worry-free decision, right? Not so fast, as a new court ruling shows. First, you better make sure the previous documentation was written by an unbiased supervisor. This begs the timely question: “Who can you trust any more?”

Case in Point: Eileen Lanahan was an administrative worker for a local government in Nevada. Her supervisor, Jerry Boyd, repeatedly disciplined Lanahan for alleged performance issues, including attendance problems and failing to follow through on work assignments. Eventually, Boyd suspended Lanahan for three days for alleged tardiness, falsification of time records and dishonesty.

It didn’t stop there. A few months later, Lanahan received a written reprimand for failing to follow procedures. The next year, she was suspended another five days—and handed a “last chance” agreement—after allegedly failing to perform certain job duties. The tipping point occurred the following year after an internal investigation identified more alleged problems with Lanahan’s performance.

The issue was handed to the organization’s HR department and a city official. After reviewing all the supporting documents in her performance file, including the last-chance warning, the decision seemed easy. Both agreed to terminate Lanahan.

Lanahan sued under Title VII of The Civil Rights Act of 1964 and the Age Discrimination in Employment Act. She claimed that her supervisor, Jerry Boyd, unfairly wrote her up based on her gender and age. Lanahan cited alleged comments by Boyd, such as “women are good for only one thing and that is sex.” (The company tried to defended itself by saying those were merely “stray remarks” that were “ambiguous” at most.)

While the final decision-makers of the firing, including the HR rep, may not have been personally biased toward Lanahan, she argued that their termination decision was tainted by relying on Boyd’s poisoned performance reviews. (Lanahan v. Southern Nev. Health Dist., D. Nev. 2/17/09)

What happened next and what lessons can be learned?

The court agreed with Lanahan and sent the case to a jury to decide if she was a poor performer or a victim of a biased supervisor.

The court cited Boyd’s “outrageous” conduct, including the “women are only good for …” comment.” The judge rejected the employer’s claim that these were “stray” and “ambiguous” remarks. Instead, it found the comments conveyed “an egregious and bigoted insult.”

3 Lessons Learned … Without Going to Court

1. Train your ducks. Just a few misplaced words can cause your managers and supervisors to create liability under federal and state employment laws. It’s 2009, and these laws were passed in the last century. There is no excuse for ignorance. Provide training, offer refresher courses and frequently redistribute employment policies.
2. Monitor your ducks. Lanahan claimed Boyd suggested he could fix the performance problems if she had sex with him. Such “joking” or “stray remarks” will never be ignored by a court and it should never be tolerated by any employer.
3. Know your ducks. Your ducks are not really lined up if one of them may appear biased. The court ruled that Boyd’s original discipline and documentation may have poisoned the process that led to her termination.