This blog is also posted on the Duane Morris Institute blog. Click here to read more from Jonathan.
Recently, your company has completed a large acquisition. Working more than 70 hours per week for almost 4 months, Doug was the acquisition’s point person.
In a managers' meeting, you appropriately heap praise on Doug for his invaluable accomplishment. You also mention that another acquisition is in the works and ask Doug “to do his magic again.” Doug loses it, responding, “I’m not going to work on another expletive deal,” and storms out of the room cursing at you.
Under ordinary circumstances, Doug’s reaction would be cause for immediate discharge. However, there are extenuating circumstances here.
Because of his exemplary track record and value to the company, the employer may be tempted not to discharge him. But if the employer discharges someone of a different race, color or religion for doing substantially less, isn’t the employer buying an EEO claim?
When we terminate employees, we often ask ourselves what are the risks in terminating them. But we also need to ask what are the risks in not terminating the person.
Not terminating Doug creates legal risk for the company. But terminating Doug entails business risk in the loss of his talent.
If consistency were the only option, then termination should follow. Fortunately, however, the law does not mandate thoughtless consistency.
The law permits employers to make distinctions based on legitimate factors, just not protected factors, such as race, sex, religion or age.
In this case, if the employer concludes that it wishes to retain Doug, rather than terminate him, the employer should write the employee a memo stating why:
- Ordinarily your behavior would be cause for immediate discharge.
- However, there are special circumstances: (1) more than 15 years’ experience; (2) consistently stellar performance; and (3) your role in the recently completed acquisition.
- Only because all of these special circumstances are present, you will receive a final warning rather than be discharged.
Assume a few months later an employee of a different race or national origin is let go for swearing at his supervisor. Assume further that the employee files a charge of discrimination with a government agency.
In these circumstances, the employer’s defense is that the difference in treatment was not due to race or national origin but rather the non-discriminatory mitigating circumstances contemporaneously documented. While the civil rights commission may not agree with the employer’s business judgment, the fact that non-discriminatory factors were documented should prevail if the law is applied faithfully.
Even if you make exceptions sparingly and prudently, you may end with some claims. Perhaps some consolation can be found Ralph Waldo Emerson’s Self-Reliance:
“A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do.”
Of course, Emerson was not subject to Title VII, the ADA, the ADEA and other federal, state and local anti-discrimination laws. But the discrimination laws prohibit only unlawful inconsistency. They do not require foolish consistency.
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, AS PERTAINING TO SPECIFIC FACTUAL SITUATIONS OR AS ESTABLISHING AN ATTORNEY CLIENT RELATIONSHIP.
For more on employment and the law, visit SHRM’s Legal Issues page at http://www.shrm.org/legalissues/Pages/default.aspx.
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