Terminating Employees: How Can Employers Avoid Discrimination and Retaliation Claims? As most employers know, terminating employees can be complicated and expensive. Often, the recently terminated employee feels that the decision to terminate was made in bad faith. Thus, it is very important that employers take every precaution to protect themselves from claims of discriminatory and retaliatory termination.

Here are a few ways to avoid claims of discriminatory and retaliatory termination:

• Have clear written policies. Employee conduct needs to be clearly explained and distributed to each employee in written form. What is permitted and what is prohibited should be easy for every employee to understand. Grounds for termination should be spelled out clearly in writing to avoid questions after the fact.

• Enforce policies evenly and consistently. Enforcement of written policies regarding employee conduct and misconduct has to be even and consistent. Inconsistent enforcement opens the door for accusations of discrimination and potential employer liability. Treat like situations alike in order to avoid problems.

• Conduct thorough and neutral investigations. Before taking any adverse action against an employee, it is important to conduct a thorough and neutral investigation into any allegations of employee misconduct. What matters most in avoiding discrimination and retaliation claims is whether the employer has acted in good faith and conducted an appropriate investigation, not whether the decision is ultimately proven wrong. Courts don't demand that employers conduct a precise type of investigation so long as the process is inherently fair. Neutral investigators are a key component of this process. Employers need to be able to prove they had a reasonable basis for the termination, and a neutral and thorough investigation is the best proof.

• Give the accused a chance to respond. The decision to terminate should not be made lightly. A carefully considered decision can only be reached after the accused employee has been given the opportunity to respond to the charges and the evidence against him.

• Explain the reasons for the termination. To defeat a retaliation claim an employer must merely offer a legitimate (lawful) reason for an adverse action; it doesn't have to prove the action was fair. Any time an employee is terminated, employers should give the employee a written explanation of the reasons. This creates a record and supports the legitimacy of the decision.

In summary, employers need to be aware that hasty termination decisions can be costly. Before terminating any employee for misconduct or violations of company policy, it is imperative that employers conduct a thorough investigation. A fully documented investigation will go a long way toward insulating an employer from any claims of discriminatory or retaliatory termination.

ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952), or by e-mail (geskridge@eskridgelaw.net.) Please visit our website at www.eskridgelaw.net.

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