Can’t explain firing? Better call your lawyer

Employers that can’t provide a good, business-related explanation for every termination are courting legal trouble. Unless an employer can justify its action, an employee who sues for discrimination will find it relatively easy to get the case in front of a jury. That’s always a gamble.

You don’t have to share the reason for the termination with the employee, but you do need to document the reason for your records at the time you make the termination decision.

Otherwise, it will look like you cooked up a possibly discriminatory reason for the firing after the fact.

Recent case: Benjamin began working for the Hebrew Center for Special Children, a Brooklyn organization that helps developmentally delayed children.

An Orthodox Jew, he dressed in the corresponding religious attire. Then he stopped practicing Orthodox Judaism and began practicing what he called traditional Judaism instead. He stopped cutting his hair and no longer wore religious garb.

Soon, his supervisor began telling him his hair was too long. The supervisor explained that the criticism was coming from higher up in the organization and that he risked getting fired if he did not cut his hair.

On one occasion, the supervisor even told Benjamin to hide so a visiting executive wouldn’t be able to see his hair.

Despite the repeated warnings, Benjamin refused to cut his hair.

A few months later, Benjamin was fired. He was told the reason was “we are trying to make new changes around the residence.”

He sued, alleging religious discrimination.

The employer said the reason was not failure to conform to the organization’s restrictive Orthodox dress and grooming code, but could not offer up a performance-based reason for the discharge.

The nebulous “changes” the employer cited to explain the termination didn’t satisfy the court, which said the case could go to trial. (Leizerovici v. HASC Center et al., ED NY, 2018)