When employers need to discipline or even terminate an employee, it can be a fraught situation. No one wants to risk a lawsuit, but employee discipline can stir up a lot of conflict. How can you feel confident you are following the law?
Employers have a responsibility to ensure they are not making job-related decisions based on illegal criteria or in retaliation for making a good-faith complaint. Employers are generally prohibited from making disciplinary or termination decisions based on:
- Gender, gender identity or sexual orientation
- Pregnancy or marital status
- National origin
- Disability or perceived disability
- Age (40 and older)
- Genetic information, such as family medical history
Additionally, employers are prohibited from disciplining or terminating an employee based on the employee having made a complaint about discrimination, participation in a discrimination investigation or lawsuit, blowing the whistle on illegal company behavior, taking medical or family leave, making a workers’ compensation claim, or otherwise exercising their workplace rights.
Any time you discipline an employee, take a moment to ensure that the decision is consistent with your policies, that other employees are being treated the same, or that you can justify any difference in treatment by citing a non-discriminatory, non-retaliatory reason.
Consider documenting your reasons
In general, you are following the law if you can cite a non-discriminatory, non-retaliatory reason for disciplining or terminating the employee. With such a reason documented, the employee would generally have to show that your reason is false or pretextual in order to win a discrimination lawsuit.
Communication with the worker can prevent disputes
When working to prevent potential disputes, one thing many employers overlook is the effectiveness of communication with the employee. It can be awkward or feel confrontational, but letting the employee know exactly why they are being disciplined or fired can go a long way toward preventing disputes and accusations.
What to do if a discrimination complaint arises
If a charge is filed with the Equal Employment Opportunity Commission or a state agency, you should talk to your employment law attorney right away for a strategic response. It is important to respond to the charges promptly and effectively.
When an official charge is filed, you need to retain all relevant records, at least until the charge is resolved.