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  • 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
    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.

    Comment


    • #3
      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.
      hr for me
      Senior Member
      Last edited by hr for me; 11-08-2015, 12:06 PM.

      Comment


      • #4
        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)?

        Comment


        • #5
          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.

          Comment


          • #6
            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. )

            Comment


            • #7
              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.

              Comment


              • #8
                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.

                Comment


                • #9
                  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.

                  Comment


                  • #10
                    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?

                    Comment


                    • #11
                      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.

                      Comment


                      • #12
                        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).

                        Comment


                        • #13
                          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?
                          throwaway64759
                          Junior Member
                          Last edited by throwaway64759; 11-09-2015, 11:03 AM.

                          Comment


                          • #14
                            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.

                            Comment


                            • #15
                              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?

                              Comment

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