It’s a familiar scenario: The new employee you hired just isn’t working out. Her performance is poor, and she repeatedly falls short on assignments. You’ve warned her that she isn’t meeting your company’s standards, yet she still fails to improve. You decide to fire her. Before you act, you should know about a recent court decision that shows how one simple step may help reduce your risk of losing an expensive discrimination suit.
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Worker Sues After Firing
Evelyn Sasmor, a senior vice-president at San Diego-based publisher Harcourt, Brace and Co., hired Mary Bradley as an information services manager. Bradley began a 90-day probationary period. At the end of that time, Sasmor extended Bradley’s probation for another 90 days, citing concerns about her technical skills and her failure to follow up on assignments. Sasmor also discovered Bradley had asked a subordinate worker to lie by providing a phony job reference for her husband-a violation of Harcourt’s policies.
About five months after the second 90-day period ended, Sasmor again put Bradley on probation. Two weeks later, Sasmor fired her.
Bradley then sued Harcourt for sex discrimination, among other things. She charged that the real reason she was fired was because Sasmor wanted to give her job to a man.
Court Throws Case Out
The Ninth Circuit Court of Appeal, which covers California, first pointed out that Harcourt had established “legitimate, nondiscriminatory” reasons for firing Bradley: her inadequate work performance and her attempt to get another worker to lie. This left Bradley with the burden of showing by “specific, substantial evidence” that Harcourt’s stated reason for firing her was in fact just a pretext that masked unlawful sex discrimination.
However, the only evidence Bradley could produce were her own claims that her supervisor, Sasmor, preferred a male subordinate’s work. But the court concluded that this alleged favoritism could have resulted from superior performance just as easily as from gender.
Same Manager Did Hiring and Firing
The court was particularly persuaded by another critical factor. The same person at Harcourt who had made the decision to hire Bradley had also made the decision to terminate her-and both occurred within a relatively short time period. This strongly suggested to the court that no discrimination had occurred. In other words, a manager who is willing to hire or promote employees of a certain group is unlikely to fire them simply because they are a member of that group.
Termination Pointers
Based on this case, if you are considering terminating a worker in a protected class (race, gender, age, etc.) and there is the possibility the person might file a discrimination suit against you, here are some suggested steps to follow:
- Have same person hire and fire. This case shows the importance, whenever possible, of having the person who made the hiring decision be the one who makes (not just delivers) the termination decision as well. This doesn’t guarantee you won’t be sued, but it may help strengthen your case if you are dragged into court.
Whether or not it’s practical to have the manager who hired the problem worker deal with the termination, you should still follow the two steps listed below.
- Document and warn. This is always important, even if the person is not in a protected group. In addition to having good paperwork, consider placing the person on probation. Clearly communicate specific performance goals and a timetable for review, and emphasize the consequences of failing to meet your expectations.
- Have valid justifications. Make certain that your decision to terminate is based on objective, legitimate, non-discriminatory reasons.