Documenting ‘In Case of Litigation’ Isn’t Proof of Job Bias

When dealing with difficult employees, supervisors often go the extra mile to document their interactions (and any discipline) in case the employee ever sues.

But does this extra effort at documentation provide proof that the supervisor intends to discriminate?

In most cases, no.

As long as you begin documenting the problem behavior or performance well ahead of your ultimate decision, it won’t look like you’re covering your tracks.

The legal problems come when supervisors rush to "paper" an employee’s personnel file right before discipline, or even after the discipline has been handed down.

Recent case: Nancy Metzler began working under a new supervisor after a reorganization. Co-workers had heard Metzler say she’d rather be fired than work under the new supervisor.

On her first day under the supervisor, Metzler missed work, went to her doctor and was diagnosed with stress and depression. She took FMLA leave. Meanwhile, the company began documenting her performance, in case of litigation. After Metzler returned, her performance deteriorated, and the company eventually fired her. She sued, alleging retaliation for taking FMLA leave.

Metzler claimed the documentation amounted to proof that the company was out to get her.

Not so, ruled the 10th Circuit Court of Appeals. Although documenting past performance issues after the fact—that is, after the decision has been made to fire someone—may be evidence of intent to discriminate, merely documenting poor performance before the decision is what employers should do. (Metzler v. Federal Home Loan Bank of Topeka, No. 04-3412, 10th Cir., 2006)

Final tip: Date all documents and notes, so you can show the time sequence of events leading up to discharge.