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Documentation is key to winning bias lawsuits–along with clear policies, thorough investigations

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in Discrimination and Harassment,Firing,Human Resources

When terminating several em­­ployees at the same time, make sure you have carefully documented the reasons. That’s especially important if the employees share common protected characteristics such as age.

You want to be prepared for a lawsuit if they decide the real reason they lost their jobs was their protected characteristic. Counter their claims head on with cold, hard facts.

Recent case: Todd Sutliff and two other employees of the Von’s grocery chain worked in the produce and deli departments. All were older than 40; most were in their early 50s. All were long-term employees who earned near the top of the pay scale at the unionized grocer.

Sutliff and the others were entitled to two 10-minute paid breaks per eight-hour shift, plus an unpaid lunch period. Their supervisor heard that they might be taking considerably longer breaks to hang out together in the store’s Starbucks café and set about trying to document that. He used surveillance video and noted that the time they spent at the café sometimes extended to 40 minutes or more. He considered this theft, since they should have been working except when on approved breaks.

The supervisor recommended termination. The company reviewed the time notes and video and decided to accept the supervisor’s recommendation. All three were fired.

They sued, alleging age discrimination. They pointed out that they were all over age 40 and long-time employees at the top of the pay scale. Naturally, they argued, they had been terminated because of their cost as older employees.

But the court reviewed the documentation and concluded that the employer met its burden to show a legitimate reason for their termination. Unless the employees could show that someone else who also took long breaks and who was significantly younger was not terminated, they had no case. (Sutliff, et al., v. Von’s Store, No. E050911, Court of Appeal of California, 4th Appellate District, 2011)

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