A federal court in Wisconsin is allowing a discrimination case to go to trial because, among other things, the reasons given for performance problems were too “vague.” As such, a jury could find the “vague” stated reasons to be pretextual, namely, a false reason to cover up illegal discrimination. EEOC v. Board of Regents of the University of Wisconsin System, 18-cv-602-jdp (W.D. Wis. 2019).
The Court, after noting that an employer who lies about the reason for discipline raises the inference that it has acted illegally, also said that the reasons given – even if truthful – must be specific to avoid having a judge or jury decide whether discrimination occurred. In this case, the employer stated that the plaintiff had not been “responsive, or timely, to central marketing.” The Court found that the absence of examples or an explanation of what “responsive” or “timely” meant made the offered reasons too vague to allow them to go unchallenged by the plaintiff.
In writing Human Resources documents, from evaluations to disciplinary notices to policies and procedures, do not write like a lawyer. Write like a businessperson. Be direct, and whenever possible, favor objective over subjective. Instead of “Bill engaged in inappropriate behavior when he was confronted about his chronic lateness,” say “Bill was being counseled about his 7th late arrival in the past 30 days, and Bill responded by calling his supervisor a s#8thead and throwing the written warning for lateness in his face.” Avoid words like unsatisfactory, attitude, inappropriate, timely, troublemaker, responsive, production, and the like without examples that give these conclusory words context. One person’s “bad attitude” is another person’s exercise of protected rights.
Sometimes, an employer can be too thorough in describing an employee’s bad performance or behavior. If the employee has engaged in egregious misconduct, there is no need to detail the employee’s attendance and lateness record. It could detract from the main reason, rather than support it. Once you have made your point in a written document that discipline or a poor performance evaluation are warranted, it might be a good time to stop. Never stop, however, before you have made your point convincingly, objectively, and specifically.
A few years ago, a client intercepted a vulgar, inappropriate (good taste prevents me from being specific) email an employee had sent to another employee. The employee was fired, and the state unemployment agency asked for the reason. The client looked at its rules governing misconduct, and it could not find a rule that clearly defined what the employee had done. My solution was to tell the agency that the employee was filed for sending the email that was attached to the response. We decided to let the agency put a label on the email and the employee’s misconduct.
Even though it can be uncomfortable to tell an employee that she is doing a bad job or that she crossed the line on discipline, it is absolutely essential that employees be told the truthful reasons for your actions in descriptive, objective language. You may have heard that your company is in an “at will” state, and that means that employees can be fired for any reason or no reason at all. Never rely on the “at will” doctrine, however, to avoid giving an employee the stark truth, or you could find yourself in a federal trial for employment discrimination.