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Thread: Termination of Protected Class Employee in At-Will State

  1. #1

    Default Termination of Protected Class Employee in At-Will State

    We are in an at-will state. We recently terminated an employee who falls in a protected class (racial minority).

    The employee's attorney has come back to us alleging race discrimination.

    The employee's personnel file indicates no documentation of feedback, progressive disciplinary process or warnings of disciplinary action.

    The employee's annual performance review is "Meets Expectations" with no negative commentary.

    What should we do now?

    EDIT: The employee was terminated because someone higher up didn't like him. This higher-up joined the company after the minority employee and was not involved in the hiring process. Since the employee is the only minority in the department, is it possible the courts may infer discrimination?

    EDIT 2: Upon digging through the personnel file we've discovered one mid-year evaluation on file. The mid-year evaluation was drafted by the higher up who didn't like him and contains some written evidence of performance lapses. However, it seems subjective as there's no objective scoring or ranking on a scale as with our annual performance review. It also seems to be inconsistent with the posted job description we gave him.

    This minority employee was the only one in the department to get a mid-year evaluation (everyone else is in the department is white and did not get one).

    There's no date on the mid-year evaluation and no signature from the supervisor, HR or any higher ups. It also does not have any statements about disciplinary consequences (ie. "up to and including termination"), no points for improvement, and no timeline for improvement.

    We also don't have any documentation of prior or subsequent warnings or feedback.

    What should we do now?

  2. #2
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    Since I'm already answering this question on two boards, I'll leave this for someone else to respond to. Someone else may have some additional thoughts beyond what I've told you.

    However, I will emphasize again that you NEED to have your corporate counsel involved.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Generally we always document at termination if we ever think there could be a complaint. And generally we've known there was going to be a complaint pretty quickly. I have successfully won two EEOC discrimination claims (one race, one gender), but it is mostly because of the documentation we did have. I have to agree strongly with CBG, you need to involve counsel. One thing, has this specific manager terminated anyone else and can you show a pattern that their performance issues were not documented either? Did he treat this employee the same as another non-protected employee?

    Has the employee filed with the EEOC? It is my understanding that even if they have an attorney, they need to do so prior to be given any right to sue. In that process the EEOC will first ask if you want to go through the mediation/settlement process. Both times, we have decided not to since we've had good documentation (and honestly didn't discriminate and could prove it). You need to protect your company if you decide to settle outside of the EEOC process, because there is no promise the employee couldn't also file with them after a settlement without some type of written agreement/release of claims and you need to make sure it is strong enough to actually protect you if you do settle.

    That said, based on your edits, I would strongly suggest thinking of settling rather than going through a lawsuit based on what you have posted unless you can prove a (bad) pattern of management by this manager regardless of gender, race, religion, etc. Because it looks like you can't even come up with one reason why this employee should have been terminated (other than a dislike from the new boss). Someone should have required new boss to document the performance issues way before it got to the termination level.

    I would strongly suggest you start thinking about how to mitigate this in the future because I would expect the EEOC to also want to require you to have a process going forward that is better than what you currently have to stop any future discrimination. And if you can prove you started doing so AS SOON AS you learned there was an issue, it might help you. Can't promise but it is better than sitting back and waiting for the EEOC to tell you what to do.

    Some things to consider : (1) having HR review every termination before it happens; (2) HR having a path/list of documentation and what it needs to terminate; (3) training managers on performance review criteria vs verbal/written warnings and what needs to be documented and how; etc. I've taught our managers to suspend an employee if needed (even with pay) to give us time to review even the worst situation.

    Now, this will probably sound harsher than I mean to, but honestly I'd really hate to be in your situation right now. Because I see no way that the company will win. You allowed a new manager to come in, take a dislike to an employee and terminate without any documented reasons. Regardless of whether it was due to a protected reason or not. At this point, you have no way of proving it wasn't due to the protected reason unless you by chance can prove this also happened to another employee -- which you haven't written and it makes me think you don't have that evidence.
    Last edited by hr for me; 11-08-2015 at 12:06 PM.

  4. #4

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    Quote Originally Posted by hr for me View Post
    Now, this will probably sound harsher than I mean to, but honestly I'd really hate to be in your situation right now. Because I see no way that the company will win. You allowed a new manager to come in, take a dislike to an employee and terminate without any documented reasons. Regardless of whether it was due to a protected reason or not. At this point, you have no way of proving it wasn't due to the protected reason unless you by chance can prove this also happened to another employee -- which you haven't written and it makes me think you don't have that evidence.
    We do have one piece of documentation and that is the mid-year evaluation. The mid-year evaluation contains documentation of performance lapses. However, the mid-year evaluation was drafted by the higher up who didn't like him (not his immediate supervisor who did the annual performance review) with feedback from his immediate supervisor and another supervisor.

    It may be interpreted as subjective as there's no numerical scoring on a scale as with our annual performance review. There's also no date on the mid-year evaluation and no signature from the supervisor, HR or any higher ups.

    It also does not have any statements about disciplinary consequences (ie. "up to and including termination"), no points for improvement, and no timeline for improvement.

    He was also the only one in the department to receive a mid-year evaluation.

    "In order to establish a prima facie case against his or her employer, a terminated person alleging discrimination must be able to show that:

    (1) he or she is a member of a protected class (i.e. age, gender, race, etc.);
    (2) he or she was performing the job at a level that met his or her employer’s legitimate expectations;
    (3) he or she was nevertheless fired; and
    (4) the employer sought someone else to perform his or her functions after he or she was terminated."

    Would the mid-year evaluation with documented performance issues suffice in disproving (2)?

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    No. It would not.

    And you yourself have spelled out the reasons why it would not.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    again agreeing with cbg... I feel so mean in writing most of what I have to say in response. I really wish I could give some hope to you based on the details you have given.

    I don't think that helps #2 mostly because he is the only one who had one and only one. He could claim he was singled out due to his race and dislike by the big boss to even have that evaluation when not one person of another race had one. Was there truly no other employee that needed a midyear evaluation? Again, can you prove that anyone else (other bad performers) ever got a mid-years evaluation? Or can you show how other bad performers were dealt with in the same way he was? Did you just not have any other bad performers? It just doesn't sound consistent which leads someone to ask why not? The EEOC will want to see if you were being consistent. If he was that bad, why isn't there other documentation? Why didn't it go through HR like it normally would? etc.

    And what I have found with the EEOC is that they take the employee's word as gospel and the employer must prove otherwise -- guilty until proven innocent or at least have a good reason why this one employee got a midyear evaluation and was terminated other than for his race. Especially during the claims/investigation process, the EEOC believes the claimant with no need for the claimant to prove the prima facie points. Anyone can make a claim. Now would they go as far as suing for the employee -- not often. Unless it is a big case and worth their time. Fair? Who knows? But it is what I have found in both the EEOC investigations that I have led for our company. On one claim, I spent months and had to document all discipline for all employees including their race, who disciplined them, what for and how for more than 2+ years of previous employees to prove our pattern/consistency.

    And one thing you haven't said is how long it was between that evaluation was this employee terminated? Some times if it is too long, the EEOC will throw out the notion that this was truly a badly performing employee because you kept him too long. On the other hand, they could argue that you didn't give him a chance to improve especially if you gave others a longer chance to improve. (Yes, I am cynical and will say without GREAT documentation and a great attorney and lots of $$$$s, you are up a creek). And was this mid-year evaluation done before or after the annual review that said "meets expectations"? If it was before, than unlikely you can't use "he was bad, then okay and then we terminated due to the bad". You said it was not dated, but where does it fall chronologically in the timeline?

    I would expect to need to produce discipline documentation for the last few years for all employees if it gets to the EEOC investigation stage. You need to think through what you have as evidence other than this one evaluation. Stop focusing directly on this one employee and research through what you have as other evidence to prove that this is not a pattern for the employer. Again, if you have nothing else, it might be time to consider what a settlement is going to cost.

    (and just so you know I am VERY pro-employer and think most people that claim discrimination generally wouldn't have a case....but you seem to have a very very weak hand of cards. I know you are hoping to hear you have a straight flush, but you don't. )

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    Every person has a gender, race and country of origin. So "protected class" Doesn't exist. A white male can be discriminated against just as a black woman can be.

    I otherwise agree with hrforme.

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    Agreed with the others, based on what you have posted so far, you are in a really bad position.

    As hr for me said, what you really need to focus on is not what is or isn't in this employee's file, but what's in everyone else's. Look through other terminated employees-what they did, how they were notified, what performance evaluations they had. The key is not always whether this particular employee's firing was justified or not, but whether he was treated differently from everyone else. If everyone else is fired that randomly, or you can show that other non-minority employees aren't treated any differently, than there might be poor management, but there isn't discrimination. If it's the first, well there's long term costs for that, but if it's the second, pull out your checkbook.

    Really, what you need to do is get legal representation who can actually look at your evidence (or the lack thereof) and advise you better than we can over the internet. But from what you have posted so far, it sounds like you are not in a good place.

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    Here is what I would do. I would haul this rogue higher up in for a very frank talk with corporate counsel present. Why did this guy dislike the employee? Why did he give an unauthorized appraisal that didn't follow company guidelines and over the head of the immediate supervisor? Who authorized this termination and on what grounds? Did this manager by-pass the usual process (lord, I hope that is the case and you do not just allow any random manager to fire any old employee at any time with no questions asked)? How long ago did all of this happen? What does the immediate supervisor think of this guy's performance? Honestly I would be seriously considering letting Mr. Higherup go and possibly reinstating the other employee. It all depends on what the investigation shows.

    has a claim actually been filed with the EEOC? Is it within the time frame for a claim to be filed? Is there *really* an attorney on the case? you would be surprised the number of times it is a letter from an attorney friend and or a bluff. What is the terminated employee seeking? Reinstatement? Neutral reference? COBRA paid for 3 months as they have found another job?
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

  10. #10

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    I believe the minority employee questioned a decision of the higher-up which the higher-up perceived as a challenge to their authority. Seems that higher-up has singled him out since and looked for some way to get rid of him.

    We didn't follow our progressive disciplinary process (though we have a disclaimer in the handbook that steps can be skipped and immediate termination is possible). He was discharged for performance issues, though we didn't indicate a reason in the termination letter.

    We are in at-will state so we thought it was fine. Unfortunately we failed to consider the minority/protected class angle. Since the employee is the only racial minority in the department and the only one who received a mid-year performance appraisal (for alleged performance issues), we fear that it may be inferred as motivated by racial animus in court, even if it's just coincidence.

    The higher-up is new to the company and has been with the company for less time than the minority employee. AFAIK we've never heard overt discriminatory remarks, but the minority employee is the only one who was discharged by this individual. Everyone else in the department is white.

    I'm not sure if the higher-up is racist. It's more likely that said individual didn't like the minority employee on a personal basis due to an argument with him months earlier and simply wanted an excuse to get rid of him. However, we fear the courts may infer racial discrimination due to disparate treatment and disparate impact.

    How should we resolve this?

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    Again, rather than guessing why this action took place, ASK the one responsible. Firing him for an argument with a higher level supervisor can be a legal and legitimate reason to terminate. If a lot of time has passed since that incident, it becomes less believable as the real reason. What happened since that incident? At some point someone decided he should be fired. I doubt Mr. Higherup woke one day and decided to firing Jimmy based on an argument 6 months prior.

    What you should do depends on the answers to the above and the guidance of your legal counsel. Timelines matter too. If all this happened 2 years ago, treat it very differently than if this just happened last week.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

  12. #12

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    Quote Originally Posted by ElleMD View Post
    has a claim actually been filed with the EEOC? Is it within the time frame for a claim to be filed? Is there *really* an attorney on the case? you would be surprised the number of times it is a letter from an attorney friend and or a bluff. What is the terminated employee seeking? Reinstatement? Neutral reference? COBRA paid for 3 months as they have found another job?
    AFAIK a claim hasn't been filed. It's only been a few weeks.

    The employee's attorney is asking us to reinstate the employee, either in his previous role or to transfer him to a different department.

    We were initially open to transferring him to a different department. The head of that department seemed open to taking him, but the higher-up intervened and didn't want it to happen.

    The employee got a positive annual performance review of meets expectations (no negative feedback) from his immediate supervisor, multiple raises and a full bonus. The only documentation we have of performance lapses is the mid-year evaluation (which came several after months after the annual performance review). It's possible the immediate supervisor may have been influenced by the higher-up to move forward with the decision (the immediate supervisor is a direct report of this higher-up).

    Again, it's possible the employee may have had performance lapses. But the fact that the only documentation we have is entitled "Mid-Year Evaluation" (not "Written Warning") - and he was the only one to receive it, and the only racial minority in the department - may be enough circumstantial evidence to infer racial discrimination (even if that was not the true intent).

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    Quote Originally Posted by ElleMD View Post
    Again, rather than guessing why this action took place, ASK the one responsible. Firing him for an argument with a higher level supervisor can be a legal and legitimate reason to terminate. If a lot of time has passed since that incident, it becomes less believable as the real reason. What happened since that incident? At some point someone decided he should be fired. I doubt Mr. Higherup woke one day and decided to firing Jimmy based on an argument 6 months prior.

    What you should do depends on the answers to the above and the guidance of your legal counsel. Timelines matter too. If all this happened 2 years ago, treat it very differently than if this just happened last week.
    The minority employee questioned a decision of the higher-up. This occurred over 9 months ago. The higher-up may have perceived it as a challenge to authority/insubordination. The mid-year evaluation came several months later and the termination a couple of months after that.

    If we settle out of court before discovery what kind of settlement are we looking at? What about mediation? Litigation? Should we just allow for reinstatement and avoid the legal headache and monetary outlay?

    We also spent about $50k in just recruiting the employee, and will like spend another $50k to find a replacement. If he's willing to come back should we simply override the will of the new exec who made the decision? Why or why not?
    Last edited by throwaway64759; 11-09-2015 at 11:03 AM.

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    Since you're in this mess for $100k already, don't see why the resistance to seeking counsel.

    Since illegal prejudice has been raised it's the companies responsibility to investigate. This is best done by a qualified 3rd party.

    You have no way to "win" this, it's now a matter of managing how much you lose.

  15. #15

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    Quote Originally Posted by Sockeye View Post
    You have no way to "win" this, it's now a matter of managing how much you lose.
    What about reinstatement?

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    Why are you letting this higher up who got you in the mess call the shots???? TALK TO THE GUY! Find out WHY he did what he did. Stop guessing. If there isn't a really good reason for it, I'd honestly consider reinstatement. And term Mr. Higherup who got you into this mess. And seek a supervisor for this guy who has a backbone. And, firm up your processes for firing someone. STAT!
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

  17. #17

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    Quote Originally Posted by ElleMD View Post
    Why are you letting this higher up who got you in the mess call the shots???? TALK TO THE GUY! Find out WHY he did what he did. Stop guessing. If there isn't a really good reason for it, I'd honestly consider reinstatement. And term Mr. Higherup who got you into this mess. And seek a supervisor for this guy who has a backbone. And, firm up your processes for firing someone. STAT!
    We've spoken with the higher-up to get the full story. Several months ago, the minority employee questioned a decision of the higher-up which the higher-up perceived as insubordination (incidentally, two of his white coworkers were also involved in the same insubordination incident but they were not given a subsequent mid-year evaluation or later terminated).

    The higher-up wanted to get rid of him but needed valid justification. The higher-up saw performance lapses and the minority employee was given a mid-year evaluation to shape up (with written feedback from the immediate supervisor and another manager). He was the only one to receive a mid-year evaluation, with no prior or subsequent written warning or documentation of feedback. There's no numerical scoring on a scale as with our annual performance review, no date, no mention of disciplinary consequences, no timeline and no signature from the supervisor, HR or any higher ups.

    The way it was executed was very sloppy. From the advice given here it appears that the company is at significant risk for a racial discrimination suit as by coincidence he happened to be the only minority in the department. It seems the minority employee's immediate supervisor was just as fearful of incurring their wrath and went along with it for fear of being disciplined for insubordination as well.

    And if your suggestion is to term the higher-up, they've been with the company for less than a year (less time than the minority employee and immediate supervisor). The higher-up wasn't involved in hiring the minority employee. And isn't HR just as culpable in allowing this to proceed without adequate documentation and placing the company at legal risk?

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    (incidentally, two of his white coworkers were also involved in the same insubordination incident but they were not given a subsequent mid-year evaluation or later terminated).

    That's all the minority employee needs to WIN his case.

    The higher-up wasn't involved in hiring the minority employee.

    Write another zero on the check.

    And isn't HR just as culpable in allowing this to proceed without adequate documentation and placing the company at legal risk?


    Maybe. Maybe not. It depends on exactly how it went down. But that's not going to be enough to save YOUR job if they decide they need a scapegoat. You've mentioned several things on the three threads on this question that a smart HR could use to save their own necks and throw yours under the bus.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    And it just keeps getting worse. Honestly get legal counsel YESTERDAY! You are uncovering more of an issue, not less...

    I guess I would ask exactly what your position is in the whole thing? Are you in HR? Why are you the one investigating it? Are you the immediate supervisor? And yes, I would suggest releasing the higher up if I were in a position to do so. If you are the mid-supervisor, I would be concerned about my own job too. That person might end up the scapegoat for knowing and not stopping it or at least bringing it to HRs attention.

  20. #20

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    Thank you for your feedback. Again, I don't know if the higher-up is racist as I've never heard the higher-up say racist things. It was a personality conflict with one individual who happened to be the only non-white employee in the department, coupled with a series of circumstantial actions that may lead the courts to infer racial discrimination as the prime motive and a lack of oversight by HR.

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    Quote Originally Posted by throwaway64759 View Post
    (incidentally, two of his white coworkers were also involved in the same insubordination incident but they were not given a subsequent mid-year evaluation or later terminated).
    It certainly looks like the employee has a very good chance of winning his case. As others noted, get your legal dept. involved.
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    Quote Originally Posted by throwaway64759 View Post
    Thank you for your feedback. Again, I don't know if the higher-up is racist as I've never heard the higher-up say racist things. It was a personality conflict with one individual who happened to be the only non-white employee in the department, coupled with a series of circumstantial actions that may lead the courts to infer racial discrimination as the prime motive and a lack of oversight by HR.
    Once again - get your legal counsel involved.
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    Quote Originally Posted by throwaway64759 View Post
    Thank you for your feedback. Again, I don't know if the higher-up is racist as I've never heard the higher-up say racist things. It was a personality conflict with one individual who happened to be the only non-white employee in the department, coupled with a series of circumstantial actions that may lead the courts to infer racial discrimination as the prime motive and a lack of oversight by HR.
    With the facts you've presented, you will never in a million years get anyone to believe that this was not discrimination. Nor does your attempt to shift blame to HR lessen the company's liability one whit. I'm not going to go into the reasons why HR is likely not responsible because you're so far in denial, it would be a waste of time.

    You have heard from lawyers, experienced HR people, and lay people, all of whom have told you exactly the same thing; your employer is toast. You need your legal counsel involved. Take that advice or leave it but when your company ends up paying many, many thousands of dollars out and you as the immediate manager are out on the street without a job, just remember; you heard it here first.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

  24. #24

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    My instinct is that there would need to be proof of racial injustice in order for it to hold. Evidence would be lacking for the other side. There may be paperwork missing on our end internally, but fact of the matter is that you don't really need a reason to fire somebody in a company. You can basically just do it if they don't fit. Who cares if they're a minority? Still have to get along.

    I do not know of any legal ramifications of firing somebody because they don't fit the mold. So in order to go against that, the person making the accusation would have to prove that there were racial tensions - whether that be through eyewitness account or correspondence. Chances are they don't have any form of proof to push their case.

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    You don't get it. Your instincts aren't worth diddly.

    Long before this goes to court, the EEOC is going to investigate and ask for all the documentation that you have. If you don't have it, you can't produce it. If you have anything and don't produce it, it won't help you either. And what you can produce looks very very bad. That is pretty much all the proof that they need to at least issue the right to sue and to allow the employee to take it to court. Do you understand just the legal costs, even if you win (which I honestly doubt the employer will), will run into the tens of thousands of dollars along with whatever the judgment ends up being? Do you understand that their side can subpoena your hiring/discipline/firing records? This ex-employee can and will get what documents that you have if it goes to court. And based on what you have said, he will win.

    You can fire "at will" but you better be able to prove it wasn't due to a protected reason or there isn't disparate impact on who you fire. And "being a good fit" is a cop out reason to terminate (personally I think all the time) especially if it is not documented. And often leads the ex-employee to believe it was a discriminatory reason (true or not). Every terminated employee wants to know why and feel that it was fair. Investigators/judges and juries see through "not a good fit" really quickly. Like you stated $50K was spent in recruiting this employee. If he wasn't a good fit, then I would be wondering about the recruiting process that costs that much and doesn't figure this out much sooner. I suspect the "not a good fit" was actually the higher up employee who terminated him.

    That higher up doesn't have to have said racial statements. Nobody has to prove "racial tensions". And you have no documentation to back up that he was not a "good fit". But he will have plenty of evidence that he was the only one of three to be fired due to "insubordinate attitude" and not a good fit even though he had a "meets expectations" mid-year perf review. Wait? Which is it? Insubordination or a good fit? Honestly the EEOC is going to see through you all if you keep changing the reason he was fired and the employer got to the point of firing him.

    You obviously are not in HR. I am kind of surprised you are in mid-management and have never been trained on non-discriminatory management and procedures and/or how to discipline/terminate. But that doesn't mean that you can't be held responsible along with the higher up for not following any procedures that were currently in place via HR/company policies.
    Last edited by hr for me; 11-10-2015 at 05:28 AM.

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    My instinct is that there would need to be proof of racial injustice in order for it to hold.
    My instinct is that you aren't listening and aren't going to listen to anything we have to say, but one final time...

    Get. A. LAWYER!!!!!! Yesterday! There absolutely does not need to be "proof of racial injustice," whatever it is you think that would consist of. People don't actually have to be running up and down the halls calling minority employees the n word for there to be racial discrimination!!! You have just stated that a minority employee was singled out for discipline and termination when two other non minority employees involved in the same incident weren't. Pull out your checkbook, that's a slam dunk. You can sling all the "not a good fit" and "have to be able to get along" and "right to work" BS you want while your employee's attorney realizes he can send his kids to Harvard after all.

    We were initially open to transferring him to a different department. The head of that department seemed open to taking him, but the higher-up intervened and didn't want it to happen.
    I really, REALLY do not understand why this higher up continues to hold a job. And the blame shifting to the HR department-when it sounds like they didn't know any of this was going on until after the fact-incredible.

    You stated that the employee was seeking reinstatement. It sounds like you have a chance to settle this, and from everything you've presented you probably should, and before the employee comes back this higher up should be terminated. I can't say that to an absolute certainty without being able to examine all the evidence in the case first hand (like, you know, that LAWYER we keep telling you to hire would!) But I'm pretty sure once you talk to them, they are going to say if you can make this go away by rehiring the employee and wiping the slate clean you should grab that raft and hold on for dear life.

    FINAL ANSWER: In order, here are the steps you need to take NOW.

    1) Get a lawyer.
    2) Tell them ALL the facts, and ONLY the facts up front, with no "wasn't a good fit" BS and show them what documentation you have.
    3) Do exactly what the lawyer tells you to do.
    4) Repeat step 3

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    Even if Mr. Higherup isn't racist, he is a terrible manager. If this employee and or others were insubordinate 9 months ago, it should have been dealt with then. And, dealt with the same for all. Mid-year reviews are not bad and can be used as needed with just those employees having performance issues. There is nothing wrong with that. The law does not govern reviews so it can look like whatever you want for it to look like. It doesn't have to have a numerical score or anything of the sort. Where you have a problem is you have Mr. Higherup who holds grudges, singles out employees indiscriminately, and undermines the actual supervisor. That is toxic to an organization. If there are performance issues, the actual supervisor needed to be documenting and addressing it, not this new higher up.

    HR may or may not play a role in any of this but if Mr. Higherup is permitted to steamroll his way through and use personal grudges as a basis for business decisions, then likely, HR wasn't going to stop this. That does not mean the company can not fix this mess. The guy is seeking reinstatement. That is HUGE! He has not yet filed anything with the EEOC or any other acronym agency. Why you would even consider anything other than reinstating this employee who "meets expectations" is beyond comprehension. Meanwhile, Mr. Higherup needs a serious "Come to Jesus" meeting with his boss. He either needs to be told on no uncertain terms that he is to toe the line, or preferably, be shown the door. He has already proven he can not act in the best interest of the company, which is the bare minimum one should expect from anyone with supervisory authority.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

  28. #28
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    You have three employees who were involved in the same incident.

    The minority employee was fired, after a trumped-up mid year evaluation that no one else received.

    The non-minority employees still have their jobs and did not get any kind of eval.

    Whether you like it or not, that is all the "proof of racial injustice" needed.

    I'm beginning to agree with the guy on the other forum who thinks you are Mr. Higherup.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

  29. #29
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    It's a very good point that this is mostly likely MrHighUp (MHU). Otherwise how would he be privy to so much knowledge such as MHU has never made racial slurs etc. I had guessed he was the mid-manager originally who also signed off on the termination, but the more he posts, the more your guess makes sense.

    The perspective sure does sound like someone who is looking for any thin strand of hope about why this all went down the way it did and how that was OK from MHU's point of view. Sorry dude, you are in a very deep hole.

    ( I am on a totally not-work-related forum and it always amazes me the details that come out in further posts when the majority of posters disagree with the original poster's viewpoint. More details that try to support the OP....makes one wonder )

  30. #30
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    This OP seems to think that if we say to him "You're OK, you're not racist, you didn't do a racist thing, you are just fine, you have no legal problems whatsoever," that he can just tell this to the plaintiff's lawyer and everything will go away.

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