HR Specialist: Employment Law

Clear, common-sense employment law advice that cuts directly to the bottom line. An attorney may say what the law is – but the monthly issues of HR Specialist: Employment Law and its related weekly e-letters explain what managers and human resource professionals should do that is both safe and practical in the real world of business. Learn more about HR Specialist: Employment Law and the two free reports you'll get when you subscribe...

It often makes sense to give a fresh start to a poorly performing employee who has been complaining about discrimination. Place her in another position with a new supervisor, new co-workers and a clean disciplinary record.

Then if her workplace problems persist, you can terminate her without worrying about retaliation claims.

That’s true even if the same upper-level manager makes the final termination decision—as long as the new supervisor didn’t know about the prior problems, discrimination complaints and performance issues, and the firing decision wasn’t based on performance problems that predated the transfer.

Recent case: Vernell Lloyd, who is black, worked as a nurse for a large North Carolina medical center. She had continual performance problems, which she attributed to race discrimination. She filed a series of EEOC and internal discrimination claims.

When her performance didn’t improve, the senior VP of nursing decided to give Lloyd a fresh start.

Lloyd was transferred to a different division with new supervisors and co-workers. None of Lloyd’s new co-workers or supervisors knew anything about her past performance problems or EEOC complaints.

Soon, her performance problems resurfaced. After progressive discipline, her new supervisor recommended that she be terminated. The same senior VP concluded that Lloyd should be terminated based on her latest problems.

Lloyd sued, alleging race discrimination. The court dismissed her complaint, reasoning that she really had been given a fresh start in an assignment where no one knew about her past problems or her prior discrimination complaints. (Lloyd v. New Hanover Regional Medical Center, No. 7:06-CV-130, ED NC, 2009)