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Evidence of Discrimination

by The Human Equation, Inc. on 5/22/2008
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When terminating an employee, I try to prevent a negative or humiliating confrontation by giving a neutral reason for the termination rather than stating outright that the actual cause is the employee's poor performance. Might such an approach be harmful if the terminated employee later files a discrimination lawsuit against my company?

Yes. Several federal laws make it illegal for an employer to discriminate against an employee, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Under such laws, an aggrieved employee may file a lawsuit to recover potentially significant damages from a former employer. During the litigation process, if an employee makes a preliminary case of unlawful discrimination, then the employer is compelled to articulate a legitimate, nondiscriminatory reason for the termination. At this point, employers routinely assert that poor performance, not inclusion in a protected classification such as race, religion, or age, was the actual reason for the employee's termination. This assertion provides the terminated employee with the opportunity to try to prove that the proffered reason for termination was nothing more than a pretext to conceal the actual reason for the termination.

It is at this point in the litigation that the employer wishes the real reason for the employee's termination had been given at the outset. Why? Because courts have routinely noted that when an employer offers divergent reasons for a termination, the initial reason may have been a pretext for some other reason. Offering multiple explanations for a termination suggests the possibility that none of them are true. One court noted that "a rational trier of fact could find [that] varying reasons show that the stated reason was pretextual, for one who tells the truth need not recite different versions of the supposedly same event." This logic makes it clear that it is unwise to "sugarcoat" the truth when terminating an employee. Although the termination should be done in a professional and respectful manner, employers must give an employee the true reason for the termination. Otherwise, the terminated employee's attorney may one day have reason and opportunity to ask the employer: Were you lying then, or are you lying now?

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