Firing without fear - Legal Trends

With only a few narrow exceptions, the 1991 Civil Rights Act does not make anything illegal that previously was legal. What the act does is increase the incentive for employees to sue by increasing the amounts they can recover if they win and making it easier for them to win.

To stem the tide of litigation, many employers are reaffirming their commitment to EEO and sensitizing their supervisors. These actions, though necessary, are not sufficient, because most discrimination claims have nothing to do with discrimination. They are the product of perceptions of unfairness relating to systemic flaws. If these systemic flaws are corrected, most discrimination claims can be avoided.

Failure to confront

Most employees do not become unacceptable overnight. Instead, the process is gradual, the discharge being a product of a course of conduct occurring over time. Consequently, except in the most egregious rules' violations, the employer's response should be progressive. As the employee comes closer to losing his or her job, the employer's response should become progressively more severe.

Most supervisors fail to provide their employees with adequate notice when their expectations are not being met. They ignore problem-employee behavior until they can endure it no more. Then, ultimately, they explode, giving the employee little or no opportunity to correct the perceived deficiencies. Having received no notice that his or her job was on the line, the employee perceives the discharge to be unfair. And this apparent unfairness produces the anger that serves as the stimulus for most discrimination claims. When witnessed by other employees, it provides a catalyst for concerted activity as well.

There are two principal reasons why supervisors don't supervise. First, they don't know how; they receive little or no training.

Second, even if they have received training, they are uncomfortable with the punitive discipline systems that are foisted upon them. After all, most supervisors don't feel comfortable disciplining their own children. It's not surprising that they don't want to punish individuals who are their peers, and perhaps friends. So the tools remain unused and the problems persist.

If employers are to avoid discrimination claims, supervisors must receive training in how to do their jobs. Employers also must change their orientation toward discipline so that supervisors will be more comfortable with the power they wield. The key here is nonpunitive discipline.

Nonpunitive discipline

Like a punitive system, nonpunitive discipline is progressive. But the steps in the systems differ. Supervisors do not issue warnings and reprimands. Instead, the process is one of corrective counseling.

But the differences between the two systems are more than nomenclature. The systems differ in their nature, purpose, focus and direction.

In a punitive system, the nature and purpose of discipline is to punish employees into compliance; in a nonpunitive system, the aim is to develop responsible and committed employees. In a punitive system, the object of discipline is the "problem employee"; in a nonpunitive system, it's a problem that the employee has. in a punitive system, the focus is on the employee's prior improper conduct; a nonpunitive system stresses the potential for a more productive future. Finally, in a punitive system, the direction of discipline is vertical--parent to child; in a nonpunitive system, it's horizontal--adult to adult. The differences between the two systems are best demonstrated by the penultimate step.

In a traditional system of punitive discipline, the step preceding discharge is the unpaid suspension. While this may satisfy the supervisor's need for retribution, it does little to bring about the behavioral changes that are desired. In fact, it is almost always counterproductive.

Suspending an employee without pay can be compared to sending a child to bed without supper. The hungry child becomes angry and resentful toward his parents, forgetting the reason why he or she was punished in the first instance.

The same is true of the employee supended without pay. The pain of loss of pay allows the employee to feel victimized, to focus on how unfairly he or she has been treated as opposed to how unfairly he or she has treated the workplace.

In contrast, in a nonpunitive discipline system, the last step is a decision day--a day off, but with pay. The purpose is to provide the employee with an opportunity to think about whether he or she can make a sincere and purposeful commitment to continue employment.

An employee given time off with pay realizes the urgency of the situation, but cannot logically feel like a victim. For what the employer has done, at no expense to the employee, is give the person control over his or her employment destiny. This sense of control is key. When employees believe they have the power to change, they have the incentive to do so.

Consequently, nonpunitive discipline reduces an employer's exposure to litigation not only by increasing the pretermination notice that employees receive but also by decreasing the number of discharges subject to challenge.

Over-evaluation

As a general rule, supervisors give their employees inflated performance evaluations. Poor employees are evaluated as marginally competent, marginal employees as satisfactory, satisfactory employees as above standard, and good employees as deserving a high throne.

Supervisors over-evaluate their subordinates for several reasons. Whether the reason is cowardice or kindheartedness, the effect is harmful to the employer. Because when the poor performer ultimately is discharged, the performance appraisal will be used against the employer.

The employee reasons as follows: For years, I have received nothing but stellar performance appraisals. Now, suddenly, I am discharged. It can't be because of my performance. Otherwise, my evaluations would not have been as good as they were. There must be another reason. And it must be an illegal reason. It must be because of my__." Fill in the blank with the protected group(s) in which the employee falls.

Inflated performance appraisals give employees a false sense of security and deprive them of an opportunity to improve. It is not surprising, therefore, that they provide the discharged employee with an incentive to sue. But they provide more than just the incentive; they are a strong arsenal in litigation.

Because when the employer subsequently claims that the employees performance was woefully inadequate, the employer's contention will be inconsistent with the employee's prior performance appraisals. This inconsistency results in what the law calls pretext. Pretext alone wins cases.

Supervisors who rate all employees as satisfactory are not doing their jobs. Worse yet, they place their employer at risk. If employment litigation is to be avoided, therefore, supervisors must be held accountable for their evaluations. The key to this accountability is to require them to make comparisons among the subordinates they evaluate.

For instance, assume a supervisor evaluates nine employees on eight criteria, on a scale of 1 to 5. Before the supervisor finalizes her evaluations, she should be required to rank the employees on each criterion. Only the top two, for instance, should be eligible to receive a 5, the next two a 4, and so on. If supervisors are forced to make internal comparisons, evaluations will be ratcheted down to reflect reality.

Inconsistent treatment

One of the first questions the Equal Employment Opportunity Commission or a state commission investigating a discrimination claim asks the employer is whether any other employee has engaged in the same or similar conduct as the charging party but was not discharged. Every supervisor should ask this question before discharging an employee.

Herein lies the cause of many discrimination claims. While a supervisor's disciplinary actions may be consistent, when the employer is forced to defend a charge, fact finders (like the discharged employee) tend to look at the company's disciplinary actions as a whole rather than the disciplining supervisor's actions in isolation.

For this reason, company-wide disciplinary records should be maintained. These records should be reviewed before any proposed termination. If there are individuals who have engaged in the same or similar conduct but who have not been discharged, it becomes management's responsibility to see whether there are credible, job-related reasons for the disparate treatment. Overall job performance, length of service with the company and receptiveness to corrective counseling are some of the factors to be considered.

In addition to maintaining company-wide disciplinary records, it is important that there be regular supervisory meetings to discuss problem-employee situations. These meetings will serve three principal purposes.

First, they will reinforce what should be obvious but often isn't--supervisors are paid to supervise. The more supervisors supervise, the fewer surprises there will be.

Second, by sharing "war stories," supervisors will become better supervisors. They will have the benefit of the group's collective experience in resolving what often appear to be insurmountable problems.

Third, these meetings will provide the HR manager, or other individual who is responsible for maintaining the disciplinary records, with information about problem employees that may not be reflected in the formal records but is relevant to assessing the likelihood of a successful, disparate treatment claim.

Finally, the disciplinary process itself should include mechanisms to promote consistency. For instance, the steps of discipline should be given an active life, a period of time after which they ordinarily will not be considered in determining the subsequent level of discipline to be meted out. If disciplinary steps are not given an active life, inconsistent treatment in terms of evaluating the employee's entire record is inevitable.

But the active life not only promotes consistency; it also provides employees with an incentive to make the behavioral changes that are desired. The employee's goal is not simply to avoid discipline but also to acquire a "clean record." Again, the best way to avoid discrimination claims is to develop responsible employees from the beginning.

An appeals procedure

No matter how fair a discharge may be, at the moment of termination, the employee is filled with a sense of denial. Having just committed suicide, the employee now accuses the employer of murder. The employee has a need, indeed a perceived right, to tell his or her side of the story to some third party who has the power to remedy any injustice that may have been done.

For most employees, litigation is not the preferred choice; it is their only choice. The employer's "open door" is not open. And, even if it is, employees are viscerally suspicious of processes controlled by management, no matter how fair management may be. If employers are to keep employment disputes in the workplace, they must offer employees something more, such as peer review.

Peer review means exactly what its name implies. The determination of whether an employee's discharge will stand is decided in-house by a panel consisting, in whole or in part, of the employee's peers.

Some supervisors fear the partial abdication of power that peer review involves. When confronted with a siege of discrimination claims, employers have no choice. Absolute power is less absolute than it seems--a lesson Marie Antoinette learned the hard way.

Equally important, peer review gives up less than most employers assume. The Performance Systems Corp. (PSC) of Dallas, Texas, recently studied 10 national companies with a combined total of more than 10,000 employees. These firms' employees had the option to appeal discharges to senior management or to use peer review. Discharges were reversed in the peer review process only 7 percent of the time. In contrast, appeals were reversed by senior management 25 percent of the time.

Moreover, in virtually all cases, the dispute ended with peer review. According to the PSC study, only 2 percent of the discharges subject to peer review continued with the employee's filing a lawsuit after an adverse finding by the peer review panel.

Finally, peer review will do more than slake employees' collective appetite for litigation. With the specter of peer review, supervisors supervise better. And, as the amount of notice that supervisors provide increases, the number of employment discrimination claims concomitantly decreases.

Conclusion

The 1991 Civil Rights Act will have the practical effect of making the at-will principle a toothless nullity. With the potential cost of unfairness now including pain and suffering and punitive damages, employers have no choice but to ensure that the pretermination and termination processes are fair and perceived as fair. Employers who recognize the cost-effectiveness of fairness will have a competitive advantage as we approach Workforce 2000.

COPYRIGHT 1992 Society for Human Resource Management
COPYRIGHT 2004 Gale Group