National Clothesline

Firing an employee is never pleasant. Neither is telling a job applicant that he or she does not have the job.

The company, however, exposes itself to great risk if it gives anything less than a candid, accurate explanation for the reason.

When an employee claims that his termination was based on race, or a job applicant claims that he was not hired because of his age, he must be able to show that race or age played a part in the decision. This is normally done by showing that non-minorities were treated differently, or in the case of age, that a younger employee with lesser qualifications was hired.

In a lawsuit, the employer then gets the chance to articulate a nondiscriminatory reason for the decision, such as poor work performance, a bad reference, or lack of experience.

To avoid having his lawsuit thrown out of court, the plaintiff must show that the reason offered by the employer was pretextual or false.

One way the plaintiff does this is by showing, among other things, that the employer changed that reason or gave a different reason at some point.

For example, let’s suppose you have an older employee who is constantly late, terrible on the phone, and careless when handling money.

Rather than be confrontational, you decide to tell her that you are cutting back on staff for budgetary reasons, and she is going to be laid off. She sues because you selected her, rather than the three younger employees who are always on time and competent.

Because you cannot justify the decision based on financial evidence, you decide to bring up all the real reasons for her termination.

In most cases, the employee would be able to go forward with her lawsuit because you have changed the reason for her termination, which suggests that there may be other — discriminatory reasons — for the decision.

While you might be able to convince the court or the jury that you were just being a “nice guy,” you would still have to go through an expensive trial. If you had been honest from the outset, you might have won before the case went to trial.

When I give seminars on hiring and termination, I tell the participants to lay out the reasons for their employment decisions with pride and confidence.

Don’t mince words. Don’t soften the blow. Don’t lie. State accurately, at the risk of sometimes being cruel, why the employee is lucky to be fired instead of being led out of the office in handcuffs.

It is so much easier to defend an employment decision that has been reached carefully and articulated accurately to the employee or unsuccessful applicant. Anything less opens up the employer to questions like this from a lawyer representing the former employee: “So, you didn’t tell the truth to the employee when you fired her, did you? But you expect the court to believe you now, right? ”

Of course, you should not go overboard in explaining the reasons for a termination. Never state, for example, that “your age had nothing to do with it,” unless the employee claims at the termination meeing that “age” was the reason.

Even then, a simple denial works much better than an elaborate explanation why age was not considered. Try: “No, you are being fired for excessive lateness, poor phone manners, and two cash register shortages this week. ”

Truth is the best strategy in almost all labor relations situations. Even when your intentions are good, it can end up costing you money in litigation to tell a “little lie.”

There are plenty of lawyers ready to pounce on the problem. It is better to tell the truth and deal with any hurt feelings immediately. You may not be able to eliminate the stress, but you may be able to eliminate the lawsuit.