By Hampton & Pigott
Posted on 12-15-2020
You treat your employees with fairness and humanity. You judge people on results, not on personal characteristics such as race, gender, or sexuality. If the poor performance or misconduct of an employee compelled you to fire them, you should be prepared for a wrongful termination lawsuit. The employees you let go need not fall into any of the protective categories defined by the 1964 Civil Rights Act. Sometimes filing a lawsuit is the way for a person who has lost their job to express their anger, frustration, and disappointment.
To make yourself ready for such a challenge, you should pursue the following strategies:
Ensure that all employees receive a handbook that contains the company’s policies and procedures. All employees should confirm with their signature that they received one. You should also ensure that your managers offer honest and thorough feedback to everyone in their charge. If the employee you fired had performance issues, this should be well-documented. They should be counselled after each incident of failure or misconduct, and this paperwork should be kept.
Each of your employees should know who they work for. You should also ensure that hiring and firing decisions are made by a single person. The careers of your employees should not be bounced from one supervisor to another.
If you have terminated someone in a protected class, you should strongly consider replacing them with a stronger performer who is of the same gender, age, race, religion, etc. It may be possible for you to promote from within your organization or have an employee make a lateral move into the position.
Courts will often dismiss a discrimination suit if you have done a like with like replacement. It proves that the termination was based on employee performance or conduct, not prejudice.
You should ensure that there is consistency in the enforcement of company policy and performance standards. If one person is only warned after an infraction and another person is fired for doing the same thing, this can make you vulnerable to a wrongful termination suit.
The best way to avoid this liability is to be cautious and deliberate in your decision-making. Termination is the ultimate form of discipline for an employee. The people who have the power to fire should not be flippant about it. They should carefully document the process that led them to this action.