Imagine a horrible accusation made against one of your managers — maybe harassment, maybe violence, maybe theft, maybe drugs. This is an outspoken employee who has sued you before — and won — and with whom you have to be careful. But under heavy pressure from top executives, you immediately fire the manager, loudly explaining that this behavior won’t be tolerated.
Then you find out that you got the facts wrong and acted too hastily. The CEO calls the fired manager to apologize and offer reinstatement and a promotion. She sits on the job offer for a week, deciding whether to sue or bargain for more.
You think: “If only I were a bigger employer with better investigators and better policies, I could avoid this.” Think again because the latest employer to fall into this trap is the biggest, most resourceful, most procedure-bound employer in the country, with thousands of trained investigators ― the U.S. government.
Act in Haste, Repent at Leisure
Until July 19, Shirley Sherrod was the director of rural development for a Georgia office of the U.S. Department of Agriculture (USDA). She is outspoken, locally respected, and well experienced. On March 10, she gave a 40-minute speech at a local NAACP event, recounting a 24-year-old epiphany. Around 1985, she gave short shrift to a poor local farmer whom she referred to a white attorney to be helped by “one of his own kind.” But she learned from that experience that the job was about poverty, not race, and urged the listeners to similarly move beyond race and tackle the bigger issue of poverty. A powerful story with a powerful lesson.
But on July 19, conservative blogger Andrew Breitbart trumpeted the first half of the story, ending with the observation that Sherrod shunted the white farmer to “one of his own kind.” Within hours, everyone from the NAACP to Fox News’ resident curmudgeon, Bill O’Reilly, called for Sherrod’s head.
That very afternoon, the White House obliged. USDA Secretary Tom Vilsack demanded Sherrod’s resignation, declaring “zero tolerance” for discrimination. Sherrod received the demand while on a three-hour drive back to her office. Three phone calls later, while still driving, without anyone talking to her or getting her side of the story, she was told to pull over to the side of the road and resign.
Ready, Fire, Aim
The next day, those who called for Sherrod’s demise backed off as the full video and its true context came to light ― showing her message to be tolerance rather than prejudice. The NAACP first tempered and then withdrew its call for termination, while Fox News’ Glenn Beck spent 17 minutes elaborately and emotionally decrying the termination. The White House also rescinded its demand for Sherrod’s departure, with both Vilsack and President Barack Obama calling her to apologize and asking for her to return to the elevated post of USDA deputy director of advocacy and outreach. As of this writing, she is still mulling over that offer while vowing to sue Brietbart.
How many things went wrong in this story? First, terminations should be based on internal strategy, not outside pressure. Whatever was to be done to Sherrod, neither the NAACP nor Bill O’Reilly should have been any moving force.
Second, always get the employee’s side of the story before you act. In a critical situation, implement a suspension if you need to, but never terminate until you ask the employee for an explanation. Ninety percent of the time, your decision won’t change, but any subsequent fact-finder will still punish you if you don’t go through the paces. And in the rare occasion you had the facts wrong, you’ll be really glad you checked.
As of our deadline, it was still unknown whether Sherrod will sue the USDA. After a career in public office, my bet is that she’ll parlay this episode into the job of her liking, from which she will likely never be able to be fired.
For all of you, take solace in the fact that nobody is immune from this type of snafu, and then start to worry about the fact that these same folks are in charge of your security and prosperity. Let’s hope they do a much better job at that.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at (415) 541-0200 or schickman@freelandlaw.com.