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Always assume termination will be challenged

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in Discrimination and Harassment,Firing,Human Resources

Here’s a good rule of thumb when disciplining employees: Consider it a given that if discipline leads to termination, the entire disciplinary decision-making process will be challenged in court.

That’s why you must carefully document every disciplinary action, starting with warnings. That way, you will have a clean record showing why the employee deserved to be disciplined or fired.

Recent case: Brenda Peppers, who is black, worked for a golf resort. She filed an EEOC complaint alleging race discrimination. Later, she was terminated after accumulating five “performance citations” over the course of just six weeks.

Peppers sued, alleging that she was fired in retaliation for filing her EEOC complaint. She also claimed that a white employee wasn’t fired for conduct worse than hers.

The club countered that the white employee only received one performance citation, for allegedly drinking alcohol during a shift. Peppers, however, received five separate citations from four different company representatives, each of whom alleged incidents of poor service or rudeness.

Because the incidents were well-documented, it was clear to the court that the two employees weren’t similarly situated. Keeping the white employee and terminating Peppers wasn’t discrimination; merely a reasonable decision based on different incidents. (Peppers v. Traditions Golf Club, No. 11-1111235, 11th Cir., 2012)

Final note: Peppers also alleged that a manager who knew about her EEOC complaint issued one of the citations and didn’t question the other four citations. This, she reasoned, tainted the entire process and showed that the manager merely rubber-stamped the complaints against her.  

The court didn’t buy it. There was absolutely no evidence that the four other managers knew anything about her EEOC complaint, or that their complaints weren’t true.

Also note: Courts don’t like having to second-guess decisions about workplace disputes, such as whether drinking on the job is worse than treating five customers rudely.

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