Prepare For An Ugly Charge: Discrimination

    The poorly performing employee had first received a "coaching and counseling," a written warning, followed by a performance-improvement plan and a two-day suspension. It was obvious that a firing was imminent. Everyone made a special effort to be civil and courteous, honest and open. But now, the cry comes: "Discrimination!"

    In our office, we call this a "hemorrhoid" case. Here’s why. In 1962 in Salina, Kansas, every seventh-grade boy was required to take an industrial arts class. On the first day of school, Mr. Milton, the shop teacher, quickly identified six boys (I was one of the miscreants) as the class clowns and moved us to the front of the room to sit at one big shop table so he could keep an eye on us. Big mistake. The perfect storm of six mischievous junior-high boys sitting together kept everyone in stitches. I misbehaved more at that table than I have before or since. One day as I entertained the table after lunch, I suddenly felt a weighty hand on my shoulder. The room got quiet. Mr. Milton was going to make me an example to the class. In those days of corporal punishment, Mr. Milton took special pride in his paddle. About 36 inches long, made of solid oak, with a half dozen quarter-size holes drilled through the middle to provide extra wallop, the feared instrument hung on a nail by the classroom door. On that day, Mr. Milton grabbed it, marched me to his desk, bent me over the edge and drew back for the swing. Just at the height of his backswing, a shout came from the shop table in front: "He has hemorrhoids!" Mr. Milton froze. No swat. I pranced back to my seat. Misfits 1, Mr. Milton 0.

    The diversion shout "hemorrhoids!" is not too different from the accusation of discrimination heard in many workplaces right before a firing. In some cases, there may actually be discrimination, and employers must be vigilant to eliminate it. Sadly, however, some employees also have learned that claiming discrimination or participation in a "protected activity" slows or stops disciplinary action because of the employer’s fear of retaliation claims. These fears are not unfounded: EEOC statistics confirm that for fiscal year 2003, almost one-third of discrimination charges included a charge of retaliation.

    Employees can choose from a virtual Scrabble board of laws (ADA, ADEA, FMLA, OSHA, Title VII, USERRA, NLRA) for protection from adverse job action. Each of these federal laws and corresponding state laws contains language to protect individuals against retaliation by their employer for participating in a protected activity. In the courtroom, an employee/plaintiff can prove retaliation in one of two ways: direct or circumstantial evidence. Direct evidence is the easiest to prove, but it very rarely happens. An example of direct evidence would be handing the employee a notice of termination that says, "You complained of discrimination and you’re fired." Plaintiff’s attorneys dream of that kind of evidence. In that case, employee/plaintiff wins, hands down.

    Proving retaliation by circumstantial evidence is more common. The plaintiff must first show that he engaged in a "protected opposition" to the employer’s violation of law. This may be as simple as crying out some form of "discrimination!" just before being fired or expressing support for others who have complained of discrimination. Then, the plaintiff must prove that he was the subject of adverse job action by the employer and make a link, or "causal connection," between the cry "discrimination" and the adverse job action. The employer then has to prove there was a legitimate, non-retaliatory reason for the action. And then back to the plaintiff to prove retaliation by poking holes in the employer’s legitimate non-retaliatory reasons for termination.

    An employee’s attorney usually pokes holes in the employer’s reasons by proving that (1) the employer’s stated reason was false; (2) the employer acted contrary to written company policy; (3) the employer acted contrary to its usual practice; and (4) the employer treated the employee differently from other similarly situated employees. If the plaintiff’s lawyer does her job, there will be witnesses who testify that other employees were not fired for similar infractions, and that the supervisor "had it in" for the plaintiff. Other employees’ job evaluations will show that the plaintiff got higher scores than employees who kept their jobs. By stacking up coincidence, inference and offhand comments, a good plaintiff’s attorney can wrangle a juicy jury verdict for the plaintiff.

    Here are the rules I think employers should follow to avoid a "hemorrhoid" case.

    Document, document, document. Records documenting that an employee’s poor performance came before the claim of discrimination or retaliation are wonderful trial exhibits when defending a lawsuit. Follow your company’s performance and discipline policies closely: careful documentation of verbal counseling, candid job evaluations concerning poor performance and detailed performance-improvement plans are all examples of the evidence that wins a retaliation case for the employer. Train supervisors to be complete, accurate and courteous when putting facts on paper. Have another supervisor review the final product for comment before presenting it to the employee.

    Be a fair and impartial judge. Listen to both sides of the story when employee issues arise. Give the employee a fair chance to improve. Involve at least three people in termination decisions. If the department head, the employee’s direct supervisor and a human resources representative all have a say in a decision to fire, defense of any subsequent retaliation claim becomes much easier, especially if these decision-makers are unaware of the employee’s protected activity. Proving a link between the termination and the protected activity will be almost impossible.

    I should have gotten that swat in 1962. I deserved it. And if Mr. Milton had known I didn’t really have hemorrhoids, he would have let me have it. He just didn’t get his facts before he pulled the paddle off the wall. Employers are the same: get the facts beforehand, satisfy yourself that the job action is unrelated to the protected activity and document performance problems and disciplinary action. You will make your lawyer’s job infinitely easier (and less expensive) and avoid hemorrhoids.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce Management, October 2004, pp. 18-19 -- Subscribe Now!