Nothing will sink a legal defense faster than inconsistent explanations fromabout the real reasons for employment decisions. Before anyone makes any statements about a decision, review the facts and make sure everyone is on the same page.
Review every document, check every signature and make sure everything in writing matches up with what management says. That is especially true when it's time to provide answers to an EEOC inquiry or federal lawsuit.
If you say one thing during the agency investigation and another during depositions, the employee's lawyer will think she has struck gold. She'll have powerful circumstantial proof that management was "out to get" her client by manufacturing bogus excuses to retaliate or discriminate. And, in the 5th Circuit, she'll be able to argue that the inconsistency makes the company's reasons "unworthy of credence."
Recent case: Ursula Staten, a restaurant manager for New Palace Casino, complained that African-American workers were treated differently than whites. When the casino closed the restaurant for renovation, it transferred some employees to other restaurants and furloughed others. The casino furloughed Staten. She applied for other positions but wasn't rehired.
During an EEOC investigation, the company CFO initially testified that all employees were furloughed and none were transferred. He said Staten wasn't rehired because no one was rehired.
Later, when confronted with transfer forms that he had signed, the CFO acknowledged he had misspoken. He also changed his testimony on the rehiring question when told another employee (not Staten) had been rehired, saying that the other employee had seniority. The court didn't buy it, saying a jury could conclude that the CFO's inconsistent explanations were unworthy of credence. (Staten v. New Palace Casino, No. 05-60144, 5th Cir., 2006)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- You don't have to wear blinders to an applicant's known disability
- Government workers' 'free speech' might be nothing more than insubordination
- Insubordination: How to handle it legally
- When terminating public-sector employees, be careful how you announce their departure