When ‘explaining’ a worker’s firing comes back to bite you
If you do get questioned by the EEOC about a potential bias charge, here’s a thought: Be very, very clear about why you fired someone.
A difficult conversation
Zann Kwan had been working for a small family-owned real estate management company for about 18 months when she had a sensitive discussion with her CEO.
Kwan said that on Sept. 3, 2008, she asked the CEO why she was being discriminated against and treated differently from the men in the office with respect to salary increases and bonuses.
The CEO allegedly told her that he and Andrew Silverman each speak with Allen Silverman about their “own men” and Allen then decides the increases and bonuses.
About three weeks later, on Sept. 26, 2008, Kwan was fired.
They were a little confused
So Kwan went to the Equal Employment Opportunity Commission (EEOC) claiming retaliation, and the EEOC pursued the case.
The real estate management company then filed a Position Statement with the EEOC explaining its reasons for firing Kwan.
The problem: Those reasons kept shifting.
As the court said:
[The company's] explanations for the plaintiff’s firing have, however, evolved over time. Andalex initially contended that its change in business focus to international investments made the plaintiff’s skill set obsolete. Subsequently, it shifted to an explanation that the plaintiff’s poor performance and bad behavior were the reasons for the termination.
The court sent the case onward, which means an expensive settlement or a lengthy trial are coming soon.
What’s the lesson?
Joseph S. Brown, writing on the Employers’ Advisor blog, had the following takeaway for companies:
… the practical lesson for employers is simple: get your story straight and stick to it. Implementing this lesson, however, is not as easy as it sounds when there are multiple justifications and decision-makers involved. From the termination meeting to the EEOC position statement, reaching out to … employment counsel at an early stage can save headaches and more substantial costs down the road. There is simply no substitute for well-crafted, consistent communications about your company’s reasons for a personnel decision.
The case is Kwan v. The Andalex Group.
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