You can’t prevent every lawsuit over a discharge, but you can be prepared. That preparation includes making sure you can point to solid, performance-based reasons for every termination. Lay the groundwork first with a performance improvement plan (PIP) and you will be well on your way to showing the court your decision was based on objective, measurable business reasons rather than some kind of prejudice or discrimination.
Recent case: Wendy worked for a software company and was originally assigned to a design team. Her job was to analyze customer requests for modifying the software and assessing whether it was possible to accommodate the request. The team was eliminated during a restructuring and Wendy was offered another job that required more technical skills than she had needed on the design team.
Almost immediately, her boss began telling Wendy that her technical skills were poor and that she needed to improve them. Eventually, she was placed on a PIP with several specific goals, including completing a project by a firm due date. She missed the deadline, but got an extension.
Wendy still couldn’t get the work done and she was terminated—but only after she had filed an EEOC sex discrimination complaint. Then Wendy sued, alleging sex discrimination.
But the court looked at the PIP, which had specific goals and objectives, and concluded that Wendy didn’t have any evidence to counter her employer’s stated discharge reason: That she lacked technical skills and hadn’t completed the PIP-mandated assignment in time.
She would have had to either show that her employer put her on the PIP as a cover for gender discrimination or that a man with similarhad not been disciplined and fired. Wendy couldn’t, and her suit was dismissed. (Fiero v. CSG, No. 13-3287, 8th Cir., 2014)