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Good records are your best defense in court

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in Discrimination and Harassment,Human Resources

Can you explain why you terminated one employee, but not another who committed a similar offense? Chances are, if you didn’t document specific behavior and provide concrete examples of poor performance, you won’t be able to explain it in court.

Resolve to improve your system for documenting disciplinary actions now, before an unhappy former employee sues.

Recent case: When Nasrin, a neurosurgery resident, was terminated for poor performance, she sued for alleged sex discrimination.

She claimed that the seven-year residency program at the University of Arkansas for Medical Science had never in its history managed to graduate a female neurosurgeon, and that she had been drummed out because of her gender.

The university hospital countered that Nasrin had been terminated for a series of errors.

One time, she allegedly incorrectly declared that a patient was brain-dead. On another occasion, hospital officials accused her of violating medical protocol during surgery on a highly infectuous patient by entering, exiting and reentering the operating room without changing her gloves.

She was also cited for poor interpersonal communication, including several incidents in which co-workers alleged she screamed at them.

Nasrin tried to counter the hospital’s reasons for discharging her by arguing that a male resident who had commited similar infractions wasn’t dismissed while she was.

However, the hospital was able to produce detailed disciplinary documentation showing that Nasrin had far more behavioral problems and made more medical mistakes than her male counterpart. That was enough to convince the court to dismiss Nasrin’s lawsuit. (Fatemi v. White, et al., No. 13-2536, 8th Cir., 2015)

Final note: Come up with a system that makes it easy to document workplace problems in detail. Use a checklist. Insist that supervisors write down exactly what happened and when. If there’s a communication problem, have co-workers provide written statements. If the employee broke a rule, specify which one and provide a detailed summary of what she did wrong.

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