Reprinted from the December 1, 2007, issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through scenarios based on real-life cases. Click here to view a sample issue, get more information, or sign up for a risk-free subscription.

Undignified Send-Off Sends Ex-Employee Into Court

It’s a management must to scrutinize every termination decision through and through before you actually carry them out, since claims of discriminatory termination most often hinge on who receives a pink slip (or not). But that’s not enough to ward off discrimination demons. How you go about terminating employees can outweigh your legitimate reason for choosing them.

DIFFERENT STROKES FOR DIFFERENT FOLKS

At 4:30 p.m. on a Tuesday afternoon, manager Aidan Rosenoff summoned Kaneasha Perry to his office.

“You wanted to see me?” the employee asked.

“Yes, Kaneasha, have a seat,” the manager said as he motioned to a chair opposite his desk. “As you know, the organization has experienced a funding shortage. Company officials have determined that the only way to keep the program running is to let several employees go.”

“I’m being laid off?” Perry was aware that layoffs were a possibility, but she was still stunned by the news.

“I’m afraid so,” Rosenoff responded.

“When is my last day?” Perry asked, expecting to have at least a few days to tie up loose ends.

“The layoff is effective immediately,” Rosenoff replied. “Our layoff procedures require that you be gone by 5:00.”

“But that only gives me a few minutes to gather my belongings and say my good-byes,” Perry pointed out.

“I’ll help you pack up your personal effects,” said the manager.

Rather than help, Rosenoff stood over Perry and monitored her every move. He inspected every piece of paper she packed to make sure that she didn’t take anything that belonged to the organization.

As Perry gathered her things under Rosenoff’s watchful eyes, she could hear her co-workers whispering to one another, speculating that she was being monitored so closely because the manager thought she might steal something. Then, Rosenoff escorted her directly out of the building. Perry couldn’t help but feel humiliated and angry that she was being treated like a common criminal.

When Perry learned that a white colleague had been notified in advance of the layoff, had not been monitored, and had been allowed to walk through the building to say good-bye, she filed a race discrimination lawsuit.

Rosenoff claimed that he had a legitimate reason for monitoring Perry: He wanted to ensure the integrity of confidential client records. He didn’t monitor the white employee because his job duties did not entail handling the confidential records.

The state supreme court found two problems with this justification:

1. Perry did not handle the confidential records, either, and Rosenoff had taken no other measures to protect the information, such as checking the records room log book to see whether Perry had possession of any of the files.

2. According to the organization’s layoff procedures, all employees being laid off would receive no advance notice and would be monitored while they gathered their belongings. Thus, there was no room for the manager to distinguish between employees based on job duties or any other factors.

The court upheld a damages award for emotional distress, plus fees and costs.

PLAYING THE TERMINATION “SAME” GAME

When terminating employees, you must take care to treat all employees the same, regardless of their race, sex, etc. Something as seemingly harmless as escorting a protected employee out of the building, for example, could be used as fodder for a discrimination lawsuit if you allow an employee not in the protected group to leave on their own. In this case, Perry did not challenge her termination, just the manner in which she was let go.

If you do treat terminated employees differently, you must have a non-discriminatory business reason for doing so. In this particular case, protecting confidential information did not qualify as a legitimate business reason, since Perry did not work with the confidential files and Rosenoff had no prior indication that she was a security risk.

Besides consistency, it is also important to treat all employees with respect during the termination process. Treating employees in a humiliating or degrading manner can lead to emotional distress claims, as it did in this case. What didn’t come into play is the risk of defamation. Treating an employee like a common criminal could harm his/her reputation and spark a defamation claim.

Finally, legal implications aside, treating terminated employees shabbily in the presence of co-workers could undermine the morale of those employees who are left behind. Even if the termination process is discreet, you can be sure that news of shabby treatment will make its way back to the remaining staff members. This is an easy way to lose your employees’ trust.

More information about this publication/Order a subscription