Discipline Derailed by ‘Evidence’ of Discrimination and Poor Documentation

Jill fired Jack, but hadn’t followed policy, hadn’t been consistent, and had little documentation. Jack sued. What else could go wrong? Plenty. [Go here for Jill’s story]

‘Evidence’ of Discrimination

The next problem that’s going to crop up is ‘evidence’ of discrimination. There will likely be some stray remarks. Somewhere along the line, Jill will have made statements that taken by themselves might not amount to much, but coupled with a termination take on a new meaning. For example:

• “Hey, old-timer, can’t you keep up?” (Jack is an older man)
• “I thought you people were supposed to be good at …’  Jack is a member of an ethnic minority)
• “Hey, wheelchair man, race me?” (Jack is a person with a disability)

Comments like these are made in good humor (we hope), but they lose the humor in court.

‘Evidence’ of Good Behavior

Jill has one additional problem. Although she claims poor performance from Jack, there’s no evidence of that in her behavior toward him. For example:

• There is no record of any statements or warnings to Jack about his behavior.
• There are no comments or indications in the performance appraisal of any problems. In fact, Jack has a “Good” rating from Jill.
• Jack got a raise along with everyone else and got the same percentage raise as his peers.
• Jack got his customary bonus along with everyone else.

Adjudicators like to see that an employ got a “fair shake,” not just a “legal shake.” And part of that is being told what’s wrong and getting a chance to improve.

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And Then, There’s the Jury

So, there’s ‘evidence” of good behavior, there’s no evidence of poor behavior, and there is “evidence” of discrimination.

And who’s on the jury? Twelve managers with good jobs who will sympathize with Jill, the manager? Not likely. The jury has retired people, unemployed people, in general, people who are not disposed to favor the employer.

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