Employment Discrimination Claims: Practical Steps to Take Before Saying “You’re Fired!”

Photo Credit:   http://www.california-labor-law-attorney.com/californias-discrimination-laws/

Photo Credit: http://www.california-labor-law-attorney.com/californias-discrimination-laws/

    Texas is an at-will employment state, meaning, without a contract, anyone can be fired at any time for any reason.  Well, not quite “any reason.”

    An Employee can be fired “with cause” or “without cause.”  Being fired “with cause” is when the Employer has a reason that is generally based on the Employee’s actions, such as employee theft.  Being fired “without cause” is generally due to something outside of the Employee’s control, such as layoffs.

    But whether an Employee is fired with or without cause, it is illegal to fire an employee for any discriminatory reason.  Most discrimination cases are very fact intensive, and ask the primary question, “Can the Employee prove that the Employer’s stated reason for termination was a false pretext for that termination?” 

    From an Employer’s perspective, what should you do?  Because discrimination cases are fact intensive, there is no one, silver bullet.  Rather, a discrimination case will look at all of the facts.  Thus, it is unlikely that just one of the items below can protect you, but they all can help defend you.

1) Documentation is very important.  You need to not only document a history of issues with the Employee, you need to do so accurately, succinctly, and truthfully.  For example, if the Employee’s job performance is at issue, then you need to document multiple attempts in meeting privately with the Employee to discuss the issue, outline the solutions discussed, and, if after an initial meeting, consider having the Employee sign your meeting minutes, acknowledging the meeting and the action-items from the meeting. 

    But always write so that you would not be embarrassed to have your notes posted to the front page of Google.  You just want the facts.  Do not write any derogatory comments, comments about the Employee’s appearance, or anything other than the basic facts of your conversation.

2) If you wouldn’t say it to your grandmother, don’t say it to your employee.  You wouldn’t tell your grandmother that she is old, she is worthless, or she needs to act like a man.  So don’t tell your Employee any of those things either.  While comments alone might not constitute discrimination, comments that show a discriminatory intent made by someone with power over the Employee’s continued employment are ripe for a discrimination claim. 

3) Remember your Employee handbook.  If your office has an Employee Handbook, or a Policies and Procedures Manual, that book doesn’t just bind the Employee—you need to follow it, too.  For example, if the Employee Handbook states that an Employee shall be fired after missing 10 business days and you fire an Employee for missing 11 business days but did not fire another Employee for missing 14 business days, then you leave yourself open for a more fact-intensive investigation.  Was the 11 day Employee old, while the 14 day Employee was young? Was the 11 day Employee an over-performer, while the 14 day Employee an under-performer?  Craft an Employee handbook that you and your Employees can live with.

    These are only a few of the factors considered in discrimination claims.  The Texas Workforce Commission’s website is very helpful as a quick reference guide to discrimination: http://www.twc.state.tx.us/partners/civil-rights-discrimination.