You're giving two weeks notice? Why don't you just make today your last day. You're fired.
Nice work—you've just turned a voluntary resignation with little potential for a lawsuit into a termination with some possibility of legal action. If this person was considering a suit, for example, about harassment, the termination may well push him or her over the edge.
Of course, some organizations prefer to ask an employee in these circumstances to leave immediately, because they are concerned about the employee’s access to delicate computer systems or company data, for example. That’s fine, but no need to call it a termination. Considerate treatment is a lot cheaper than a lawsuit.
Are you married, and what are your plans for a family?
This seems as though it might be a good interview question, but it's a dangerous one. Marriage and family questions are out. Are you pregnant? Do you have childcare responsibilities?
You can’t ask questions along these lines because they always suggest a discriminatory motive. Eventually, an employee will sue, charging discrimination, and you will have to explain why you asked the question.
New managers and supervisors are the ones most likely to blurt out inappropriate questions—because they are unsure and somewhat nervous doing interviewing. Train people before you allow them to interview. Give them a script if necessary with suggested questions.
Oh, what a lovely accent—where are you from?
Any racial, ethnic, and religious questions and comments are out of bounds. Again, how will you justify asking the question?
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Do you really want to transfer to a job that has so much travel with those cute young children?
This is what we call a "patronizing" question. It's going to be held to be discriminatory, and doubly so if it is asked of only women.
You're fired and I don't have to give you any reason because your employment is 'at will.'
In many states and many situations, this statement is probably true, but as they say, just because you can do it doesn't mean you should do it. Employment-at-will does mean that the employee may be fired at any time for any reason or for no reason.
However, when you give no reason, you leave the door open for discrimination lawsuits. "You fired me because I am (insert race, sex, age)." Soon you'll be in court trying to lean on your "at-will" defense and looking quite vulnerable.
By the way, giving a false reason is as bad or worse. For example, saying that the termination is due to “budgetary reasons” when it is not will make for trouble when you hire a new employee and negate the budgetary reason.
The other typical problem is to fire someone "because of performance," and then you wind up in court defending years of "good" ratings. Either you lied on the ratings or you’re lying about the termination, and it doesn’t matter which is true—once the court concludes that you lied, discrimination is going to be the logical conclusion.
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I think you are depressed. Shouldn't you see somebody?
Comments like this are made with the best of intentions, but they can have disastrous repercussions. Asking or commenting about medical conditions and disabilities is always dangerous because now you are on record as "regarding" the employee as having a disability.
That opens you up to discrimination and retaliation suits should you have to take any sort of negative action against the employee.
In these situations, keep the focus on the job requirements and how the person is failing to meet them. You’re late, your reports are not in on time, you’re not wearing protective equipment, etc. Don't make clinical judgments. You can say, what can I do to help?
You're going to take 5 weeks off to "bond"? I don't think so.
It’s natural for supervisors to react this way—who wants to lose a good worker during crunch time? But the rules regarding leave—including the Family and Medical Leave Act, the Americans with Disabilities Act, workers' compensation laws, and a myriad of state regulations—are treacherous territory. Untrained managers and supervisors should not enter there.
Make your rule a simple one—when people ask for time off, talk to HR.
In the next issue of the Advisor, we cover a few things you should say and we'll introduce the all-HR-in-one website, HR.BLR.com.
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