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Create special test for underperforming worker

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in Discrimination and Harassment,Human Resources

Do you have an employee who just doesn’t seem capable of doing his job? If you document the shortcomings, you can create a special test designed to measure improvement.

Just be sure to provide appropriate training materials as part of your effort.

Recent case: Anthony works as an environmental specialist for the Ohio Environmental Protection Agency (OEPA). Anthony is black; his co-workers are white.

For years, his supervisor urged Anthony to improve his communication and writing skills. Anthony was reassigned part time to an emergency-response team, which gave him opportunities to work overtime hours.

But his supervisor continued to criticize his work, especially how he performed his new duties.

Claiming he wanted to help Anthony succeed, the supervisor gave him training materials and created a test to assess whether Anthony was improving his knowledge base. Anthony failed the first test and then barely passed on a second try. Ulti­­mately, Anthony was pulled from the emergency-response team, cutting his overtime hours.

Anthony sued, alleging that the special test discriminated against him on account of his race. He argued that making him take the test was direct evidence of discrimination, since no one else had to take it.

The court tossed out his lawsuit. It reasoned that the only reason the test was created was because Anthony was performing poorly. Since his poor work was documented, the OEPA won. (Campbell v. Nally, et al., No. 2:10-CV-1129, SD OH, 2012)

Final note: Of course, if any white employees (or others outside Anthony’s protected class) had been performing as poorly as he did, OEPA would have had to make them take the test, too. In cases like this, it’s critical to treat all employees alike. Poor performance will almost always justify additional training and testing—as long as all poor performers have to participate.

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