Employee termination issues can be a legal quagmire

Terminating an employee can be a sticky wicket. Two recent cases help to clarify what is, and what is not, illegal discrimination.

Certain relevant rules are well known. An employer has the right to expect that employees will competently fulfill their job responsibilities. Subpar performance is grounds for termination. Discharge based on membership in a protected class is illegal. But even these basic rules can become complicated in ways understandably perplexing to managers. 

Here’s the bottom line: The mere fact that a plaintiff is a member of a protected class (race, color, religion, national origin, disability, gender, and more depending on state law) is not sufficient by itself to support an inference of discrimination. 

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For a successful discrimination lawsuit, a plaintiff must allege the following four facts: he or she is a member of a protected class; he or she is qualified for the position held; he or she suffered an “adverse employment action,” (fired, not promoted, demoted, etc.); and facts that suggest a discriminatory motive for the adverse employment action. This last requirement is key.

An example of the required elements is provided by a case involving a woman who worked for Allegro Resort Marketing, a Florida company that manages marketing for resorts in Aruba, Costa Rica, the Dominican Republic and Mexico. The plaintiff, age 42, was terminated due to an alleged reduction in force. She sued claiming age and gender discrimination. Turns out her boss had told her, “Brigitte, I want a young boy in your position.” When she became pregnant, her boss harassed her. Both big no-no’s! Further, plaintiff was replaced by a young man. The employer asked the court to dismiss the case prior to trial, arguing that plaintiff’s claims of a discriminatory motive were not sufficient. The court disagreed and refused to dismiss the lawsuit.

An example of a plaintiff falling short of the necessary evidence is provided by a case where plaintiff was the only “dark-skinned” Jamaican to work in the sales office at the headquarters of The Leading Hotels of the World. Plaintiff was terminated for alleged insubordination. She sued claiming discrimination. The only support for her position was her color, gender and national origin. Said the court, “The complaint does not include a single allegation that could implicate discrimination on the basis of race, sex, or national origin.” As a result, the decision was a foregone conclusion—case dismissed.

The takeaway is this: Lawsuits against hotels and restaurants alleging discrimination will not be successful unless the plaintiff can show actual incidents of demeaning conduct, unequal treatment or similar actions. When plaintiffs rely exclusively on the color of their skin, their nationality or gender, the lawsuit will fail. An employer’s prerogative to discipline based on job performance remains largely intact.

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