October 20, 2020

Beware the Last Straw!

In a recent case, an employer lost its defense against an employee’s claim of age discrimination.  The court ran through a work history that was replete with performance and conduct issues: offending coworkers, clients, not meeting sales goals, and more.

But what was the “last straw”? The employee asked a woman who worked next door to the employer out to dinner. So what? Well, the invitation made the woman “very uncomfortable.” She reported it to her HR manager, who in turn, reported it to the employee’s employer. This was at least the second time a young female reported that this employee had “propositioned” her.

The employer apparently found this second incident inappropriate because its employee was in his 50’s and the woman was 21. The company’s President said, “Why are you asking a woman much younger than yourself out to dinner?  You’re as old as me…!” After consulting with HR, the President offered the employee the option to resign or be fired. The employee resigned and the company replaced him with a 30-year old. The employee sued.

The court found that although the employer, “certainly had many reasons to find fault with [the employee’s] performance and professionalism,” the President’s comment suggests the employer found the employee’s overture inappropriate “because of age.” NOTE: The court added that emphasis!

Lessons Learned? When pondering an employee’s involuntary separation, ask, “What is the last straw that broke the camel’s back?” What finally led you to decide an employee had to go? Was it a protected activity, like asking for FMLA leave, a reasonable accommodation or disclosing a medical condition? If the answer is yes, that does not mean  you cannot proceed, but do so with caution. Ensure you have documentation to back up your position.  If it appears a manager or supervisor may have said or done something that gives the appearance of some animus or discriminatory motive, consider putting the employee on a performance improvement plan or last chance agreement before proceeding to separation.  Run it by your company’s employment counsel to weigh your risks and help generate options.