1. FEATURE STORY: CONSISTENCY IS KEY IN EXPLAINING TERMINATION DECISIONS
Giving different reasons for an employee's termination may be a little confusing for the employee, at best; at worst, giving different reasons may constitute pretext for discrimination in the eyes of a court. What's the distinction? As the following two cases show, the reasons for the termination can be different, as long as they are consistent.
Different and inconsistent: After missing a week of work due to a work-related injury, an employee requested time off for shoulder surgery. Rather than grant his request, his supervisor informed him that management made the decision to lay him off and that they didn't need a reason. When the employee pressed for an explanation, the supervisor stated that it was due to a lack of work. The company later claimed that the employee had been fired for cause as a result of accumulated misconduct — he had been written up for misconduct on five occasions.
The employee sued, claiming he was terminated because of his need for benefits coverage for his shoulder surgery. A court of appeals sent the case to trial. It held that the company's different justifications for the termination decision suggested the possibility that none of the official reasons was the true reason.
The company must also defend against its failure to follow its own discipline policy; its more lenient treatment of other employees for similar misconduct; and the short amount of time that passed between notifying the company of his need for surgery and his termination. (Fitzgerald v. Action, Inc., 8th Cir., No. 07-2199, 2008)
Different, but consistent: An advertising manager claimed that he was told he was being fired because management lost faith in his abilities. His supervisor cited specific examples, including: failing to seek business personally; absenteeism problems; problems with the use of business phone lines; and failing to implement performance standards in his department.
When the manager sued for age discrimination, the company asserted that he had been fired because sales revenue declined more than $55 million during his tenure while payroll and commissions increased. A court dismissed his case, ruling that there was nothing inconsistent between the reasons provided at the time of termination and those proffered during litigation; all stemmed from the belief that the employee was not properly managing his department and the company was losing money. Also, the employee offered no evidence that the company did not, in good faith, believe that the employee was an ineffective manager. (Ruleford v. Tulsa World Publishing Company, 10th Cir., No. 06-5205, 2008)
Get On The Same Page
In the words of the 10th Circuit in Ruleford, "Although inconsistent rationales may constitute pretext, the mere variety of reasons for a termination decision does not alone create pretext." The key is whether the different reasons are related.
Even if each reason is a legitimate and non-discriminatory basis for terminating the employee, it does not take away from the potentially damaging fact that the company changed reasons. Take steps to avoid running into the problem of a terminated employee or a court questioning the company's justification.
An objective HR representative should review each termination decision before the manager carries it out. Optimally, the manager has supporting documentation. Coach the manager on using these records to relay the reason. This documentation should also be used when responding to any unemployment or legal claims. That way you can ensure that management is all on the same page.
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