Lessons Learned From Wrongful Termination Claims in Discrimination Cases
Discrimination lawsuits are some of the most frequent types of employment claims that United Educators (UE) members must defend. Those involving wrongful termination allegations can be particularly challenging. Help your K-12 school, college, or university avoid some common mistakes by following these tips.
Sometimes discriminatory behavior happens because the rules haven’t been spelled out in formal policies. Other times, the policies may exist, but they’re not properly publicized or aren’t integrated into the culture. Strong policies against discrimination and against retaliation provide a foundation for a culture that stands against these destructive actions. Additionally, liability decisions often involve an analysis of relevant policies. Lawsuits involving discrimination or retaliation claims are easier to defend where strong, visible policies were in place and being followed and enforced.
- Be intentional about your institution’s culture. Cultivate a culture that encourages transparency, values honesty, and rejects discrimination. Incorporate anti-discrimination training and policy review into onboarding practices for new employees and into your institution’s regular training schedule. Provide employees consistent refreshers about your school’s values and policies.
- Review your anti-discrimination policies. After ensuring your policies are up to date, publicize them along with channels for reporting complaints. Ensure there is institution-wide oversight so individual departments don’t develop their own policies and procedures.
- Don’t tolerate retaliation. Retaliation for making or supporting a discrimination claim is unlawful. Set firm policies prohibiting retaliation and communicate this policy to all employees. Wrongful termination claims sometimes arise after an employee has taken medical leave, raised questions about fair wages, or complained about discrimination. All staff must understand that retaliation after these and other protected activities is unacceptable, and Human Resources (HR) staff or other decision-makers must take extra care to analyze the situation when managers seek to dismiss an employee close in time to such protected activities or complaints.
Proper supervisor training is critical to preventing discrimination and retaliation. Employees are often promoted into supervisory positions without receiving training in critical aspects of management and HR. Training is essential because it can’t be assumed that supervisors know how to recognize discrimination by themselves or others, or that they know how to handle it when it occurs. Discriminatory incidents that aren’t dealt with properly often escalate to untenable situations that could have been stopped and greatly increase the risk of institutional liability.
- Train and manage leaders. Establish policies and protocols to ensure managers are leading and supervising effectively. Require regular trainings on the policies against discrimination and teach managers how to address sensitive employee issues such as accommodations, harassment, and discrimination complaints. Train supervisors about what issues they may legally discuss with employees, and how to handle challenging conversations. Incorporate practices that promote accountability and oversight so weak or problematic managers are identified and their need for improvement is addressed.
- Document performance. Train supervisors to document performance accurately and honestly. Establish protocols for regular evaluations or other methods for assessing and memorializing employee performance. Articulate job requirements so employees know and understand them. Require that insubordination and other problems be handled contemporaneously through a documented process so there aren’t surprises. Ensure HR staff — or any people with the power to hire and fire — are taught to thoroughly review performance documentation before deciding to let employees go. If an employee has previously achieved work milestones, carefully review separation decisions to identify possible bias or unintended discrimination.
- Involve HR. Require supervisors to work with HR or other administrators with decision-making responsibility. These different viewpoints for reviewing the decision will ensure all policies are followed. Consider seeking the advice of legal counsel before firing employees; this ensures all state and federal laws are respected, especially when there have been prior problems or complaints by the employee.
Lawsuits often result from complaints that weren’t handled properly. Sometimes this happens due to unclear reporting options, or the people fielding complaints don’t know how to handle them. A lack of visible reporting channels and clear handling protocols can result in delays, mistakes, and mishandling of complaints. Employees can’t be protected unless they can easily raise their complaints and trust that they will be addressed fairly and objectively.
- Establish sound processes for handling employee complaints. Many wrongful termination claims arise after an employee has made an internal complaint: These include wage-and-hour issues, harassment allegations, and whistleblowing. Ensure your institution has a process for receiving and directing complaints to the correct personnel. Educate employees about how to raise concerns that arise. Complaint response should be thorough and handled professionally. Easily accessible reporting channels help institutions identify and correct problems.
- Investigate fairly. Undertake fair, honest investigations of discrimination complaints. Don’t reflexively defend the staff or institution; that would stand in the way of a thorough investigation. Designate trained investigators to avoid mistakes.
- Use complaints as a growth opportunity. After discrimination complaints are investigated and resolved through your formal procedures, use the results as an opportunity for improvement. No matter the outcome, recognize changes in the campus culture may be needed. Carefully assess the environment giving rise to the allegations and be receptive to fixing problems that exist. Similarly, don’t assume an employee’s experience is isolated. In some cases, one discrimination lawsuit is followed by claims from other employees months or years later. Demonstrate a willingness to change and take concrete action toward improvement; create a better environment for other employees.
Effective, consistent disciplinary practices are important to preventing discrimination claims. Proper discipline holds the offender accountable, stops the discrimination, and can deter future offenders. Failure to discipline indicates the school isn’t committed to the policies and values it espouses against discrimination and retaliation. Holding people accountable through discipline is an important step in efforts to stop discrimination.
- Take prompt action. Stop discriminatory behavior as soon as it arises. Effective disciplinary processes keep situations from escalating and protect complainants from further harm. Supervisors must be aware of disciplinary protocols and required to use them so they don’t take matters into their own hands or fail to discipline altogether. Consistent disciplinary processes ensure discriminatory acts are properly addressed and no excuses are made for behavior.
- Emphasize fairness. Don’t allow exceptions. Ensure disciplinary steps are explained in written form so that they’re applied fairly and consistently. Require that the discipline be applied to all employees, no matter their position or status. Failure to discipline properly —– especially when the wrongdoer is a supervisor —– often leads to liability claims against institutions. Don’t let people or departments handle discipline outside of the regular process.
Often allegations of discrimination result from the decision to end the employee’s employment. Indeed, some dismissals are the result of unconscious bias, intentional discrimination, or inadvertent discrimination where decision-makers fail to review —– or aren’t aware of —– the complete information. Discriminatory dismissals can be prevented by following the steps listed above and by carefully considering all termination decisions.
- Carefully consider all dismissals. Keep an open mind when reviewing the basis for separation, looking at historical information such as performance reviews, accommodations requests, discrimination complaints, medical leaves, and other complaints or conflicts involving the employee. If an employee has had their contract renewed or received good reviews over multiple years, look closely at why this year is different. Ensure the dismissal isn’t due to discrimination by the supervisor or decision-maker.
- Review contract details. When dealing with employment agreements or annual contracts, scrutinize all provisions. Wrongful termination claims often arise when dismissals aren’t given appropriate notice or the terms are otherwise violated. Reach out to counsel for guidance on understanding and navigating legal obligations.
- Take special care with group separations. Laying off or firing more than one person at the same time can raise many issues and legal requirements require involvement by legal counsel. These terminations must occur fairly and without discriminatory impact.
- Separate employees with compassion. Dismissals are sometimes a necessary part of employment relationships but can be done without destroying the personal relationship. Understand that the separating employee is a human being, not an employment record. Develop discharge processes that are considerate and respectful, and train staff to use compassion throughout the separation.
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About the Author
Christine McHugh, Esq.
Senior Risk Management Counsel
Christine’s areas of expertise include employment law, sexual assault prevention, protection of minors, traumatic brain injury, and diversity, equity, and inclusion. Before joining the Risk Research team, she handled UE liability claims for several years. She previously practiced employment and higher education law.
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