The Ten Commandments of Firing: Part 2, Commandments IV - VI

By: Alan L. Rupe

In our last post, we rolled out the first three of my “Ten Commandments of Firing.” 

To recap, those were: I) Though shalt have job descriptions, job applications and evaluations (geared toward the job description), personnel files, medical files, written policies, and a handbook with a signed handbook acknowledgement; II) Thou shalt investigate every recommended firing, lay off, or reduction in force as if it is thine own; and III) Thou shalt investigate every recommended firing, lay off, or reduction in force as if it is thine own.

In this blog, we will cover Commandments IV through VI.

IV. Thou shalt have no hidden agenda.

Recall that – absent direct evidence of discrimination – courts utilize an indirect evidence process to guide a court and jury through circumstantial evidence to determine whether intentional discrimination exists. That process goes something like this: the plaintiff should demonstrate they are qualified for the position at issue; that the law protects their minority status (race, color, creed, national origin, disability, etc.); and that they suffered an adverse employment action (firing is certainly an adverse employment action).

Once the former employee has passed those hurdles, the employer/defendant must demonstrate a legitimate non-discriminatory reason for the adverse job action (for example poor performance).

Once the employer has done that, the employee/plaintiff must demonstrate the legitimate non-discriminatory reason advanced is a pretext by the employer hiding intentional discrimination.

An employee fired for one reason, when the “real” reason is something else, virtually hands the former employee/plaintiff most of what they have to prove to show discrimination. So if I have a poor-performing employee and I do not want to tell them they are being fired for poor performance, instead I tell them it is “layoff” or that their position is going to be eliminated, I have gone a long way to help them win their subsequent discrimination lawsuit. If the employee later finds out there was no layoff or job elimination (because they see their job advertised or posted online), they can quickly prove the legitimate non-discriminatory reason advanced (layoff or job elimination) is false. Do not have a hidden agenda. Keep criticism job-related. Use progressive discipline and tell the employee exactly why they are being fired.

V. Thou shall not be a jerk.

When it comes to firing, optics count. So does normal everyday courtesy and professionalism. Regardless of the reaction of the employee at a termination, the employer must retain a civil, professional, courteous and respectful demeanor. Generally, an employee knows when they are about to be fired. When I started practicing law in the late 1970s, no employee surreptitiously recorded conversations with their employer. In the 21st century, with the ubiquity of smart phones, it is a routine procedure for anticipated conversations with an employer to be recorded. And if an employer chooses to be anything other than respectful and courteous, even though the termination may be lawful, the subsequent fallout from the employer’s actions can be considerable.

VI. Thou shall not nitpick.

In my years of experience, I can tell you that virtually every nitpicky termination has a basis in some sort of retaliation. Attorneys representing workers often file a claim of workplace discrimination, wait a few days for the employer’s reaction, and then file a “two-for” claim of retaliation. Here is how it typically works: The employee/plaintiff files a sexual harassment complaint; the employee’s supervisor becomes angry because the suit was filed; and shortly thereafter, the employee/plaintiff is fired because they clocked in five minutes late, or they left their work station briefly when they were not supposed to, or they ordered supplies on the wrong form, or a whole lot of other nitpicky kinds of violations. Clearly, filing a charge of discrimination does not guarantee an employee/plaintiff forever-employment, but the reason should be a good one and not a nitpicky one.

Stay tuned for Commandments VII through X in our next post on Friday, July 12.