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Your Employee Matters


By October 1, 2009No Comments

In almost every employment lawsuit, especially those involving terminations and non-promotions, an employee claims that the employer’s decision was either wholly or partially motivated by discriminatory intentions. Of course, the employer will inevitably respond that its action had nothing to do with discrimination and everything to do with the employee’s poor performance, the company’s finances, or some other legitimate business reason. Employers shouldn’t be surprised that juries believe employees in roughly 70% of the cases that go to trial.

Employers face difficulty in cases where:

  • The employee’s termination comes as a surprise, since there was little performance management or documentation regarding poor performance.
  • The employee is injured, on leave, complained about something, or has otherwise made themselves less than perfect. Management now views them as damaged goods and looks for reasons to fire them.
  • Someone in management says something stupid, such as, “When is that old man going to retire?” or “Those people are always lazy” or “If she doesn’t sleep with me, she’ll never get that promotion.” Those quotes have come from real cases. Remember, once under oath, very little will be hidden from plaintiff’s counsel.
  • Finally, there should be some checks and balances in termination decisions. A single person should never terminate an employee. If the termination involves a worker who has ever made a complaint, is on leave, has a disability, etc., the human relations department needs to get involved. If HR thinks things aren’t right, they should speak up, instead of kowtowing to the desires of a strong manager – an act that doesn’t serve the company well.

Bear in mind that under the “mixed motive” theory, the employer must show that it would have made the termination decision absent discrimination – a rough argument to make in front of twelve jurors. For example, the courts have approved this jury instruction: “In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the General Principle of Evidence Law that the fact finder (jury) is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt.’”