HR Management & Compliance

How Your Supervisors Will Get Hammered in Court

In yesterday’s Advisor, attorney Edward M. Richters offered some salient truths about going to court. Today, how a typical court appearance might go, and an introduction to the best approach for making sure your managers aren’t begging for a lawsuit.

Richters’s comments came at a workplace law symposium sponsored by national employment law firm Jackson Lewis and the Connecticut Business and Industry Association. Richters is a partner in Jackson Lewis’s Hartford, CT office.

In a typical case, says Richters, you have a member of a protected group who in receiving an adverse action is treated differently from others not in the protected class. There’s the prima facie case.

Then it’s up to the company to offer its explanation. The company says that there’s no trace of evidence of discrimination against this black employee, and that the adverse action was based on the fact that he violated policy. He was fighting and right here in the policy it says that you get terminated for fighting. So we fired him.

You’re cool, right? Richters asks.

Not quite. Invariably, the defense lawyer asks, But how about these white workers who were caught fighting? They were suspended, not fired.

Now your case is shot, and here’s the kicker: the jury may infer discrimination, even though there is no direct evidence whatsoever.

Disaster in Court

Richters’ continued with a typical example from the annals of his cases. The situation: You’ve terminated someone for poor performance. The opposing attorney goes to work on the supervisor who did the firing:

Attorney: Let’s look at the personnel evaluations. Here’s the most recent one, from 6 months ago. Is this the appraisal that you gave to my client?
Supervisor: Yes.

Attorney: Satisfactory, Satisfactory, Good, Acceptable. Where are the negative comments?
Supervisor: There aren’t any.

Attorney: I guess there must have been a real downhill slide in the last six months?
Supervisor: Yes.

Attorney: So, let’s see, about a month or two after this appraisal, you must have given my client a warning or a note?
Supervisor: No.

Attorney: Well, about three months before termination, you must have sat my client down, told him that he’s on thin ice, and told him what he needed to do to improve, right?
Supervisor: No.


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Attorney: Two months before?
Supervisor: No.

Attorney: You mean you never did it?
Supervisor: I never did it.

Attorney: Let me ask you, are you a good supervisor?
Supervisor: Yes. (The has to say yes, even though by this point he or she is thinking, I’m not.)

Attorney: A good supervisor deals with problems immediately; it’s the only thing to do for fairness and performance, right?
Supervisor: Yes.

By this time, says Richters, everyone in the room knows what the supervisor’s answers are going to be. Even the jury is mouthing “yes” and “no” along with the supervisor.

Right after the supervisor gets off the stand, it’s guess who’s turn. The HR manager. If you’re the one on the stand, says Richters, are you going to be able to answer these questions?

  • Did you check the allegations out before allowing the termination to go forward?
  • Did you check to be sure everything was done correctly?
  • Did you make sure that there was documentation in the file?
  • Did you help the manager out in making the final decision?

Richters says that you must be able to answer:

  • I checked that this termination was proper.
  • I checked what was done to other people in the same situation.
  • I counseled this person, we developed a performance improvement plan, it didn’t work out, etc., etc.

The bottom line, says Richters, is that you’ve got to have credible explanations supported by your records, and your action must have been consistent with what you did to others in the same circumstances.


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