We have a woman in our office named Bev. Let me start by saying that Bev is one of the nicest people you ever will meet. Unfortunately, she also is dumber than a box of rocks. Despite repeated instructions, she continues to make the same mistakes over and over again. We now are in the position of having to let her go. I am the one who will have to break the news to Bev. I am wondering if I have to tell her the specific reasons why we are ending her employment. I really do not want to hurt her feelings. Is it okay if I just tell her something along the lines of “its just not working out?”
Sometimes the Truth Hurts
While it is understandable that you do not want to hurt Bev’s feelings, you are not doing her or your company any favors by avoiding the truth. Legally, you could be placing your company at risk if Bev should file some sort of a discrimination claim. To better understand this point, consider how the burdens of proof work in a discrimination case.
The Law: In discrimination cases, courts typically use what is referred to as the “shifting burdens” test. First, the plaintiff (the person bringing the lawsuit) must establish what is called a prima facie case. This is pretty simple. The plaintiff need only show that she is a member of a protected class; was performing satisfactorily; and suffered some adverse employment action, such as being fired. Once the plaintiff establishes her prima facie case, the burden shifts over to the employer to show that it had a legitimate, non-discriminatory reason for taking the adverse action; e.g., performance issues. Once the employer establishes that, the burden shifts back to the plaintiff one more time. If the plaintiff can show that the reasons offered by the employer for the adverse action are a lie (the legal word is “pretext”), the court can draw the inference that the employer’s actions were discriminatory. The theory is that if the employer felt the need to lie about the reasons for its actions it is likely that the employer was lying in order to cover up a discriminatory motive.
Now, let’s take all of that and apply it to a possible situation that could arise with Bev. Even though you have legitimate, performance based reasons for terminating Bev’s employment, let’s say that you don’t share those reasons with Bev and, instead, simply tell her that she is being fired because “its not working out.” Then, suppose that Bev files a discrimination claim, such as age discrimination, against your company. During the lawsuit, you are pressed by Bev’s attorney to articulate the reasons why Bev was fired. This could occur many months after she actually was fired. At that point, for the first time, you disclose the actual, performance related issues for why Bev was let go. Her attorney then confronts you and says, “wait a minute, that’s not what you told Bev when you fired her. You gave her a completely different story.” The attorney presses you further and asks, “which is it – – were you lying then or are you lying now?”
Can you see how it could appear as though you are raising the performance related issues for the termination as an after-the-fact way to justify the termination decision? Can you see how doing so could be twisted into creating the impression that the performance related reasons for her termination are actually a lie? Now, go back to the shifting burdens approach that was discussed earlier. If the employer’s proffered reasons for the adverse action can be seen as a lie, i.e., pretext, the legal inference is created that the employer actually was acting with a discriminatory motive.
This is a long-winded way of telling you what you already knew: telling the truth is the right thing to do even if it sometimes may hurt. And, when it comes to employment matters, telling the truth is the best approach, from a legal standpoint.
The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”
If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.