Can You Fire That Worker Without Getting Sued?

Employers can reduce the chances of facing a lawsuit over a worker’s termination if they’re careful with the process and extend courtesy and consideration to the person being fired, attorneys agree.

However, "there’s no magic bullet, and the idea of a risk-free termination is an oxymoron," Jonathan A. Segal, a partner in management-side law firm Duane Morris LLP in Philadelphia, told Bloomberg BNA. "Balancing risk" is the name of the game, he said.

Discrimination claims arising from a firing rest on an argument that the terminated employee was treated unfairly due to his or her protected characteristics. To avoid this, employers should ask themselves if other employees who engaged in similar misconduct have also been terminated for cause, said Daniel J. Green, an associate with Epstein Becker Green.

"If not, there may be concerns about disparate treatment," he told Bloomberg BNA. Moreover, he said, the fired employee in such a case "will have a good contractual argument that his/her conduct did not constitute cause."

Employers should also ask if the employee has "recently engaged in whistle-blowing, alleged he/she was sexually harassed, taken a protected disability or other type of leave of absence, or engaged in other protected activity which could give rise to a retaliation claim," Green said.

HR should watch out for managers’ explanations about why a subordinate needs to be fired that may be "code words" for discrimination, Segal said. While HR shouldn’t baldly accuse a manager of bias without proof, he said it’s important to "drill down" on an expression such as "he lacks energy," which might be a coded way of trying to get rid of an employee who is old, or accusations that a female employee is "strident or abrasive," which may be code for sex bias.

Patterns of discipline may also be significant, Segal said. For example, if three nonwhite employees in a row are let go for lacking "cultural fit," the organization could have a problem, he said.

If an employee is definitely going to be fired, "develop a plan for communicating the decision to the employee," Green said. "Make sure that HR and line managers understand and follow the plan."

Segal said the line manager has to take the lead so the employee doesn’t suspect that the supervisor is "afraid," which could raise the employer’s litigation risk. 

Segal also offered advice on how to treat workers at the time of termination. For example, employers should think twice about having security escort a fired employee out of the building. Doing so might be necessary in some situations, he said, but if such a precaution isn’t called for, it’s better to avoid having the person feel that he or she was "treated like a criminal."

Being as courteous as possible can reduce the chances of an angry ex-employee marching straight into the office of a plaintiffs’ attorney, Segal said.

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