Human Resources’ Non-Biased Termination Decision May Be Unlawful Discrimination


For years I have coached employers on the advantages of getting the employee’s side of the story before deciding whether to terminate. For governmental employers, this is a matter of due process. For others, it may be a matter of contract. For those employing “at will,” it is a matter of thoroughness and fairness. Even when employers obtain an employee’s story, they sometimes fail to follow-up on an employee’s eleventh hour allegations of discrimination, harassment, or retaliation. The U.S. Supreme Court recently gave employers a good reason to do so—the potential to avoid liability under employment discrimination laws.

Imagine the following:

- Supervisor in hospital resents employee’s absences for military reserve duties;

- Supervisor schedules employee to work extra shifts without notice to make up the missed time and asks for others’ help to get rid of employee;

- Supervisor’s supervisor also resents employee’s military leave and knows employee’s immediate supervisor wants to get rid of employee;

- In a corrective action, supervisor instructs employee to stay in his work area when he is not working with a patient and to report when he has no patients;

- Co-worker complains to hospital’s VP of Human Resources and Chief Operating Officer about employee’s unavailability and abruptness;

- Chief Operating Officer orders that a plan be put in place to deal with these issues;

- Before plan is put in place, supervisor informs VP of Human Resources that employee violated the corrective action by leaving his work area without informing supervisor;

- VP of Human Resources reviews employee’s personnel file, relies on the supervisor’s allegations and the report of co-worker, and decides to terminate;

- Employee files a grievance and alleges that supervisor lied because of hostility to his military obligations;

- VP of Human Resources does not follow up on employee’s allegations—the decision to terminate stands;

- VP of Human Resources is not accused of anti-military bias in her decision to terminate, rather, employee claims employer should be liable for unlawful discrimination because VP of Human Resources’ decision to terminate was influenced by the discriminatory actions of his supervisors.

These essentially are the facts of Staub v. Proctor Hospital, U.S. Supreme Court Case No. 09-400 (2011). Prior to Staub, Indiana employers likely would not be liable for unlawful discrimination under such facts because the VP of Human Resources’ non-biased decision to terminate was not based solely on the input of the employee’s biased supervisors. In fact, before the case went to the Supreme Court, the U.S. Court of Appeals for the Seventh Circuit (Indiana’s circuit) ruled that Proctor Hospital could not be liable.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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