Many folks will tell you that the relationship between an employee and his employer is a lot like a marriage or a long-term personal relationship. The breakup of that relationship can be nasty, particularly if it has been a long-term association and one of the parties believes he has been treated unfairly. The situation can become even worse if the prospects for alternative employment are bleak.
Most employers are savvy enough to understand that they must be careful what they say — and how they say it — when telling someone he’s being terminated. That information can (and probably will) be used against you if the employee later sues. You should also realize that what a line supervisor or another manager says to the employee, perhaps long before the decision to terminate him is made, can be used against your company should litigation ensue.
Paul Simon, in his song “Fifty Ways to Leave Your Lover,” gives us some tongue- in-cheek advice on how to end a relationship. Perhaps it’s more fitting to advise you on how not to end a relationship, not from the standpoint of the termination meeting, but from the standpoint of the supervisor-employee relationship while the employee is still working for you. What follows is a list of some things a supervisor or another member of management should never say.
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Make a new plan, Stan
“Your work isn’t as good since your injury.” It’s the rare employee indeed who consistently works at a high level of achievement. A supervisor’s frustration with what may appear to be a lack of effort could lead to an inappropriate offhand remark to someone who was previously injured at work. That’s particularly true if the supervisor believes the employee wasn’t seriously hurt and could have continued to work without taking workers’ compensation leave. Even if you have a legitimate reason for disciplining or even firing the employee, that offhand comment could provide sufficient evidence of workers’ comp retaliation to allow the issue to go to a jury.
“You don’t seem to have the same level of energy as before.” What may seem like an innocent comment could be construed by the employee — and perhaps by a jury — as an indication that the supervisor believes her age is affecting her job performance. Words or phrases like “more tired than usual,” “lack of energy,” and “slower than others” may be deemed code words for age discrimination. Even if the supervisor doesn’t actually believe that age is a factor in a worker’s performance, his comments may be enough to paint him as someone who discriminates against older employees.
“Your injury must make it difficult to complete your work.” Any comment that includes a reference to a medical condition or a disability that may need to be accommodated could be interpreted as evidence that the supervisor harbors a bias against the employee. A supervisor’s careful documentation of an employee’s work performance to support any adverse job action may be for naught if the employee can show that she had discriminatory animus. Even words meant as sympathetic encouragement can be twisted.
“Why don’t you go to church on Sunday like the rest of us?” An incredible number of religions have sprung up in the last 20 years. Of course, some of them may not be legitimate. There are a number of religions that don’t follow what many believe to be the norm in religious practices, but some courts have found that practitioners of these out-of-the-ordinary religions deserve to be treated in a nondiscriminatory manner.
If a supervisor makes a comment about a certain religion or criticizes a particular religious practice, your company could be exposed to a religious discrimination claim if an adverse job action occurs. Carefully analyze whether a particular religion or religious practice is legitimate and needs to be accommodated, and keep comments about the religion or practice to a minimum.
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The comments we’ve cited here might be a bit exaggerated. We certainly hope no supervisor would make an overtly discriminatory comment that might later lead to a discrimination or retaliation claim. What each supervisor should remember, however, is that seemingly innocent comments can be construed as discriminatory or retaliatory, even when they’re made with good intentions and well before an adverse employment action is taken.
Remind your supervisors and managers that they must be aware that anything they say, particularly in a heated moment or in frustration, can be used to support a discrimination or retaliation claim. As Paul Simon said, “You don’t need to be coy, Roy,” when you supervise your employees. But all supervisors need to speak to their employees in a professional and fair manner. That way, you won’t have to “make a new plan, Stan” by having to explain the supervisor’s comments when you have a legitimate, nondiscriminatory reason for taking an adverse employment action.