(Published April 27, 2009)
I was watching a repeat of Torchwood, a British science fiction series, the other day. I guess you never really turn off the job because in the middle of the story I turned to my husband and said, "You know, if anyone else were caught hiding a Cyberman in the basement, he'd have been fired."
"You probably won't get a Cathie's Corner out of it, though," he replied. (We'll show him, won't we?)
Okay, I should probably first explain this, just in case you're not a fan of British science fiction. A Cyberman is a form of cyborg that is committed to converting the human race to cyborgism. (They're doing it out of a misguided sense of kindness — they consider it an "upgrade." ) A human character had hidden a Cyberwoman, who used to be his girlfriend, in the basement in the hopes that she could be downgraded back to human again. When his boss found out, he literally came close to killing him — I mean, the gun came out and everything. But he didn't fire him or fire the gun, either, you'll be glad to hear. In this universe, there literally was no one out there who could replace this particular character. Well, I guess later they'd have been able to call Martha and have her ship someone out from London, but this is still early on and they haven't met Martha yet...Wait a minute, where was I? Oh, right, employees who are perceived to be too valuable to be fired. Sorry. Got carried away there.
You do occasionally run into that situation. Not often, though. And, of course, since I was watching a British story, they aren't subject to Title VII. (I couldn't make heads or tails of their version of Title VII.) But we are, and we have to be careful of any perception of discrimination. While "a position that is hard to replace" is not a characteristic protected under the law, someone who later did get fired and who is of a different race, religion, etc., might not understand that distinction and wonder why they got fired when the difficult-to-replace employee didn't. So if someone commits an offense worthy of termination, you need to be very sure of your ground if you don't do it; you don't want to create a precedent.
I once had to undertake a sexual harassment investigation in which a vice president — the number three man in the company — was implicated. Before I interviewed him, I brought the CEO up to speed on the situation, the initial evidence, and the laws on sexual harassment. By doing so, I was able to interview the VP armed with my CEO's backing, who had said to me, "You tell him that he can be replaced, and I won't hesitate to do so if he's been harassing anyone." I won't try to pretend that we weren't all very relieved when the final results of the investigation revealed that some of the evidence against him was suspect, that the rest was the result of a misunderstanding, and that a talking-to and some sexual harassment training for all employees was really all we needed to do. We used some really cutting edge techniques at that company, and if we had had to fire him, it could have been months before we found someone with the same skills.
Yes, there are some offenses that warrant termination, regardless of how difficult it might be to replace the employee. (If you're not a fan of British science fiction, take my word for it; anyone found hiding a Cyberman in my basement is gone, no matter how valuable he is!) But regardless of whether your decision is to fire or not to fire, be sure you can justify it if the Equal Employment Opportunity Commission (EEOC) comes calling. In our litigious society, many employees are convinced that their employers will use the economy as an excuse to cover up an illegal firing. Let's not give them any more reason to think so than we need to, shall we?
Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.
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