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5 Questions to Consider Before Terminating a Bad Employee

Firing is risky business, especially when an employee is a member of a protected class.

Posted by Dawn Lomer on September 17th, 2012

Firing someone is difficult enough without having the extra worry of a discrimination lawsuit. But, unfortunately today’s employment landscape is full of legal mines, and navigating it safely involves moving slowly and carefully.

Before firing anyone, ask yourself the following questions. If you answer “Yes” to any, your risk of sparking a lawsuit rises, so make sure you’re fully prepared before you pull the termination trigger.

Is the Employee over Age 40?

Since 40 is the threshold for age discrimination claims, employers should tread carefully when firing an employee who is over 40.

“In advising a client on the possible termination of older employees, I advise them to focus on job performance, and to avoid talking about things like ‘retirement,’ which would be seen as an indication of age discrimination,” says William E. Hannum III, managing partner of employment law firm Schwartz Hannum PC.

“With older employees, employers frequently complain about their inability to use technology,” he says. “I encourage these employers to offer training, if they haven’t done so already. Give the employee a fair chance to succeed before firing him. In general, if a discrimination claim were to get as far as a jury trial, the jury is going to care whether the employee was treated fairly. The technical legal requirements also often seem less important to the investigator at the EEOC or state agency than fairness. The best advice to employers is often ‘be fair’.”

Is the Employee Disabled?

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When terminating an employee who is disabled, similar concerns apply, and employers should ensure they are acting fairly and legally.

“Again, it is important to focus on job performance, as with the termination of any employee,” says Hannum. “In addition, with a disabled employee, the employer needs to focus on whether or not a ‘reasonable accommodation’ has been offered or should be offered, and whether or not the employer has met its obligation to engage in the ‘interactive process’ with the disabled employee. To put that in more practical terms, the issue is whether or not the employer is being fair, whether it can help the employee be successful, and thus avoid the termination,” he says.

Is the Employee in another Protected Class?

The notion of a protected class is complicated because everyone is a member of at least two classes. Everyone has a race and everyone has a gender. The concern is that employers should not be allowed to discriminate against an employee based on these factors.

“Whether employees are minorities, LGBT, active in their church, or a primary caregiver, employers need to focus on performance, be fair, be consistent with company policies, avoid disparate treatment and avoid inappropriate (racist, etc.) comments,” says Hannum.

Have Inappropriate Comments Been Made?

“Inappropriate comments by supervisors or coworkers are common and can contribute to the risk of a lawsuit,” he says. “We recommend training to minimize this risk. But even if employees have received appropriate diversity and sensitivity training, it is not uncommon for some of them to have made inappropriate comments.”

If there has been an inappropriate comment, Hannum warns that the employer may be wise to delay the termination until there has been an investigation and perhaps until enough time has passed for it to no longer appear to impact the decision. This depends, of course, on the employer’s risk tolerance, he adds.

Has the Path to Termination Been Clearly Documented?

If you do have to terminate a member of a protected class and you have satisfied yourself that the decision has nothing to do with the employee’s inclusion in that class, make sure you can prove it with bulletproof documentation. That includes an appropriate disciplinary process that includes ample written warnings.

Ignorance is Bliss

Ideally, an employer has no idea of an employee’s sexual orientation or religion, caregiver status, or other personal information, which reinforces the idea that employers should avoid researching employees on the internet or through social networks. An employer who discovers that an employee is gay or caring for a sick parent is opening himself or herself up to risk.

“The employer typically has no reason to know this,” says Hannum. “This is another reason to focus on job performance and consistent, fair treatment of all employees.”

Dawn Lomer
Dawn Lomer

Manager of Communications

Dawn Lomer is the Manager of Communications at i-Sight Software and a Certified Fraud Examiner (CFE). She writes about topics related to workplace investigations, ethics and compliance, data security and e-discovery, and hosts i-Sight webinars.

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