Termination of Protected Class Employee in At-Will State

[throwaway65759]

What is the name of your state (only U.S. law)? OR

We are in an at-will state. We recently terminated an employee who falls in a protected class (racial minority).

The employee's attorney has come back to us alleging race discrimination.

The employee's personnel file indicates no documentation of feedback, progressive disciplinary process or warnings of disciplinary action.

The employee's annual performance review is "Meets Expectations" with no negative commentary.

What should we do now?

EDIT: The employee was terminated because someone higher up didn't like him. This higher-up joined the company after the minority employee and was not involved in the hiring process. Since the employee is the only minority in the department, is it possible the courts may infer discrimination?

EDIT 2: Upon digging through the personnel file we've discovered one mid-year evaluation on file. The mid-year evaluation was drafted by the higher up who didn't like him and contains some written evidence of performance lapses. However, it seems subjective as there's no objective scoring or ranking on a scale as with our annual performance review. It also seems to be inconsistent with the posted job description we gave him.

This minority employee was the only one in the department to get a mid-year evaluation (everyone else is in the department is white and did not get one).

There's no date on the mid-year evaluation and no signature from the supervisor, HR or any higher ups. It also does not have any statements about disciplinary consequences (ie. "up to and including termination"), no points for improvement, and no timeline for improvement.

We also don't have any documentation of prior or subsequent warnings or feedback.

What should we do now?

 

[LdiJ]

What is the name of your state (only U.S. law)? OR

We are in an at-will state. We recently terminated an employee who falls in a protected class (racial minority).

The employee's attorney has come back to us alleging race discrimination.

The employee's personnel file indicates no documentation of feedback, progressive disciplinary process or warnings of disciplinary action.

The employee's annual performance review is "Meets Expectations" with no negative commentary.

What should we do now?

EDIT: The employee was terminated because someone higher up didn't like him. This higher-up joined the company after the minority employee and was not involved in the hiring process. Since the employee is the only minority in the department, is it possible the courts may infer discrimination?

EDIT 2: Upon digging through the personnel file we've discovered one mid-year evaluation on file. The mid-year evaluation was drafted by the higher up who didn't like him and contains some written evidence of performance lapses. However, it seems subjective as there's no objective scoring or ranking on a scale as with our annual performance review. It also seems to be inconsistent with the posted job description we gave him.

This minority employee was the only one in the department to get a mid-year evaluation (everyone else is in the department is white and did not get one).

There's no date on the mid-year evaluation and no signature from the supervisor, HR or any higher ups. It also does not have any statements about disciplinary consequences (ie. "up to and including termination"), no points for improvement, and no timeline for improvement.

We also don't have any documentation of prior or subsequent warnings or feedback.

What should we do now?

It doesn't look very good for your company. Its time to lawyer up. I also wouldn't try to use that mid year evaluation either, since nobody else got mid year evals.

 

[cbg]

You should immediately, first thing Monday morning, consult your corporate counsel.

If I were an attorney instead of an HR professional and this case went to court, I'd rather be on the employee's side of things than your company's.

 

[throwaway65759]

It doesn't look very good for your company. Its time to lawyer up. I also wouldn't try to use that mid year evaluation either, since nobody else got mid year evals.

OK, but how is this any different from a written warning given to a poorly performing employee to create a paper trail for subsequent dismissal?

 

[cbg]

When only one person is given a mid-year eval, and then that eval is used to fire him, that's almost the definition of a "pretext" termination. That mid-year eval hurts you; it doesn't help you. Now if EVERYONE had been given a mid-year eval, or if there were a series of write-ups for poor performance or misconduct, THEN it would help you.

But not in this case.

 

[throwaway65759]

When only one person is given a mid-year eval, and then that eval is used to fire him, that's almost the definition of a "pretext" termination. That mid-year eval hurts you; it doesn't help you. Now if EVERYONE had been given a mid-year eval, or if there were a series of write-ups for poor performance or misconduct, THEN it would help you.

But not in this case.

The minority employee was the only one who received a mid-year performance evaluation because he was the only who showed performance lapses necessitating it.

Is this a valid defense?

 

[cbg]

You can try it, but your chance of having it work are no better than 50/50. And that's being generous.

 

[throwaway65759]

You can try it, but your chance of having it work are no better than 50/50. And that's being generous.

Could you please elaborate on why you feel it's 50/50? Thanks.

 

[cbg]

We're having this conversation in two different places. I just gave you a more detailed answer on the other board. Can we keep it all there, please?

 

[throwaway65759]

Update: We talked to the higher-up to get the full story. Several months ago, the minority employee questioned a decision of the higher-up which the higher-up perceived as insubordination (incidentally, two of his white coworkers were also involved in the same insubordination incident but they were not given a subsequent mid-year evaluation or later terminated).

The higher-up wanted to get rid of him but needed valid justification. The higher-up saw performance lapses and the minority employee was given a mid-year evaluation to shape up (with written feedback from the immediate supervisor and another manager). He was the only one to receive a mid-year evaluation, with no prior or subsequent written warning or documentation of feedback. There's no numerical scoring on a scale as with our annual performance review, no date, no mention of disciplinary consequences, no timeline and no signature from the supervisor, HR or any higher ups.

The way it was executed was very sloppy. From the advice given here it appears that the company is at significant risk for a racial discrimination suit as by coincidence he happened to be the only minority in the department. It seems the minority employee's immediate supervisor was just as fearful of incurring their wrath and went along with it for fear of being disciplined for insubordination as well.

For those whose suggestion is to terminate the higher-up, the higher-up has been with the company for less than a year (less time than the minority employee and immediate supervisor). The higher-up wasn't involved in hiring the minority employee. And isn't HR just as culpable in allowing this to proceed without adequate documentation and placing the company at legal risk?

 

[LdiJ]

Update: We talked to the higher-up to get the full story. Several months ago, the minority employee questioned a decision of the higher-up which the higher-up perceived as insubordination (incidentally, two of his white coworkers were also involved in the same insubordination incident but they were not given a subsequent mid-year evaluation or later terminated).

That just makes the problem even worse.

The higher-up wanted to get rid of him but needed valid justification. The higher-up saw performance lapses and the minority employee was given a mid-year evaluation to shape up (with written feedback from the immediate supervisor and another manager). He was the only one to receive a mid-year evaluation, with no prior or subsequent written warning or documentation of feedback. There's no numerical scoring on a scale as with our annual performance review, no date, no mention of disciplinary consequences, no timeline and no signature from the supervisor, HR or any higher ups.

The way it was executed was very sloppy. From the advice given here it appears that the company is at significant risk for a racial discrimination suit as by coincidence he happened to be the only minority in the department. It seems the minority employee's immediate supervisor was just as fearful of incurring their wrath and went along with it for fear of being disciplined for insubordination as well.

For those whose suggestion is to terminate the higher-up, the higher-up has been with the company for less than a year (less time than the minority employee and immediate supervisor). The higher-up wasn't involved in hiring the minority employee. And isn't HR just as culpable in allowing this to proceed without adequate documentation and placing the company at legal risk?

Of course HR shares in the culpability. However, HR doesn't control the company or the company politics. Their job is to act a "moral compass" so to speak in terms of what is and isn't kosher under employment law. However, they only have as much power as the company gives them.

That new higher up is serious problem for your company.

 

[LeeHarveyBlotto]

What should we do now?

Get ready to write a check.

 

[ecmst12]

Incidentally, EVERYONE is protected from employment discrimination based on race, not just minorities.

 

[throwaway65759]

Thank you for your feedback. Again, I don't know if the higher-up is racist as I've never heard the higher-up say racist things. It was a personality conflict with one individual who happened to be the only non-white employee in the department, coupled with a series of circumstantial actions that may lead the courts to infer racial discrimination as the prime motive and a lack of oversight by HR.

 

[Proserpina]

Thank you for your feedback. Again, I don't know if the higher-up is racist as I've never heard the higher-up say racist things. It was a personality conflict with one individual who happened to be the only non-white employee in the department, coupled with a series of circumstantial actions that may lead the courts to infer racial discrimination as the prime motive and a lack of oversight by HR.

You used the word "coincidence" on the other forum.

There is no "coincidence" here and I think you know that.