July 2014 HR Brain Teaser

Brain Teaser Courtesy of EPLI Pro™

Underperforming Employee

You’ve had an employee who started work for you in 2012. Recently, she has been missing deadlines, becoming sloppy with her work, and isn’t performing as well as she had in the past. You talked to her but there wasn’t any documentation. During your conversation, the employee admitted to being careless. She told you she’d improve but she didn’t.

Yesterday this employee asked for a few days off to attend a convention for her church. You let her go but it didn’t help matters, her performance continued to slide. While she was out, you found a significant error that she’d made that impacted a customer.

Based on her decline in performance and the recently discovered error, you decide to terminate her. From your perspective, it shouldn’t have been a surprise; you’ve been talking to her about the problems.

You were shocked when you received a charge from the EEOC claiming discrimination based on religion. You didn’t fire her because of her religion, she wasn’t doing her job! You tried to explain that to the EEOC.

Likely, the EEOC responded:

A. They completely understood. Once you explained the course of events, they could understand why she needed to be terminated and dismissed the charge.

B. They asked you and her supervisor a lot of questions. It seemed like they were looking for ways that you’d discriminated against her. Making implications that you didn’t feel were accurate. It was very frustrating. You didn’t feel it went well and you don’t know what will happen next.

C. They asked to see documentation of her performance problems. They wanted to see the evidence that you’d talked to her. They asked if she was disciplined for her behavior, in writing. They asked a lot of questions about her absence and why you terminated directly after it. In the end, they concluded you had discriminated against her and her termination was retaliation for taking the time off to attend her church conference.

Answer:  C  Managers oftentimes simply talk to any employee about declining performance rather than doing a formal write-up. Like the case at hand, failure to write-up the employee can be a critical mistake. The only documentation in the employee’s file was positive performance reviews. You said she was underperforming but there’s no documented evidence of that. She engaged in protected activity, i.e. attending a religious conference, and was terminated shortly thereafter. You have no other documentation to show that she’d been warned previously and that your decision was based on progressive discipline. Without documentation, the EEOC concludes that the termination must be related to the employee attending the religious event. 

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