The possibilities of stirring up a discrimination claim when hiring and firing are endless. All that’s needed is an assertion, however thin, that the decision was based on some wrongful reason. Here are four areas that can take a manager by surprise.
Dear Applicant: You’re not hired.
First is the letter of rejection the office sends to its turned-down job applicants. Don’t try to ease the blow with a polite “we’ll keep your resume on file and consider you for future openings.” That’s dangerous language. It can be viewed as a promise to consider that applicant every time a job becomes available. And if the office doesn’t follow through with its promise, the applicant can come back with a discrimination claim.
In one case, a rejected applicant got just such a promise, wasn’t hired for future jobs, and claimed discrimination because she wasn’t considered for every position that became available for the entire next year. During that year, 16 positions had come open and the employer had to defend itself against 16 individual claims. If the office has some interest in an applicant, it’s OK to say “feel free to apply again for future positions.” But don’t say more than that.
Why didn’t I get picked?
Dangerous too is any mention of the reason an applicant has not been hired. Don’t give any explanation in the letter. Say no more than “thank you for your interest. We have filled the position.” What if the candidate calls with an honest question of “I really wanted that job. What separated me from the applicant who got it?” Give a reason, but make sure it’s job-related and non-discriminatory, perhaps that the other candidate had more experience or better skills in some area pertinent to the job. Be prepared for that type of call ahead of time. Appoint one person to answer calls so the response is always correct.
In addition, make sure the doctors understand that they should not discuss rejections with any applicant. Otherwise, an applicant might call three different doctors and get three different reasons, one being “I don’t know why you didn’t get the job. You were the best candidate,” whereupon the applicant – with employment attorney in tow – starts searching for the “real” reason for the rejection, which, after all, must be discrimination.
I don’t like you; go away
The third area applies to firing: Can the office fire an otherwise good employee who just doesn’t get along with the manager or with a doctor? If the conflict is caused by the staffer having a poor attitude, consider that a discipline problem similar to getting to work late or refusing to do assignments. All the manager has to do is document when and how the attitude was expressed and discussed and proceed with firing as usual.
But if the conflict is solely a matter of personality mismatch, the office can still fire that person. If the state recognizes at-will employment, it’s lawful to terminate an employee at any time and for any reason or for no reason at all – as long as it’s not a discriminatory reason. Even so, don’t throw the axe too quickly. Make sure there is an at-will statement in the handbook. And for safety, put the statement on the application form and on offer letters sent to new hires.
In addition, make sure there are no discriminatory reasons – real or perceived – behind the termination. That can easily happen if the staffer is in a protected category. The manager might be annoyed with Staffer A’s excessive absences when in fact A was taking leave under the Family and Medical Leave Act. Or the doctor might be annoyed that Staffer B is slow compared to the other staff when B is 60 years old and the others are in their 20s. Beyond that, be sure there have been no incidents or statements that could give the perception that the termination is “for an illegal reason.” That can happen too.
Suppose the doctor who wants to end the employment has sent emails disparaging the staffer’s race or gender or age. Or suppose the staffer has participated in protected behavior such as complaining of harassment or becoming qualified as disabled or filing a complaint under the Fair Labor Standards Act. Under such circumstances, the firing could be seen as retaliation.
When a staffer is in a protected category, a good defense is to replace that person with someone in the same protected class. That admittedly limits the hiring choices, but in a tight situation, it can help the defense of a claim.
The family hire
Fourth is the question of nepotism, or whether the office can hire a friend or relative of a doctor over another applicant who is better qualified. That’s OK to do. The doctors can hire whomever they want as long as the office doesn’t have a policy forbidding family hires and as long as there’s no state law restricting nepotism. The surprise, however, is that the angry rejected applicant could claim discrimination. For example, a highly qualified 57-year-old candidate could pull the age card if the office hires the doctor’s 26-year-old niece. Even so, the defense is simple: Just tell the truth, perhaps “Niece A wasn’t hired because she is young. She was hired because she’s related to someone here.”
And the staffer who cries wolf
Beyond these situations is the question of what to do when an employee makes a spiteful and unfounded accusation of discrimination. The answer is that the office has to take the complaint seriously and investigate it. Do that even if the accusation is obviously unfounded and made on the spur of the moment out of anger. Talk with the staffer, get the names of the witnesses, be respectful, and show that the doctors take the accusation seriously. Say “I know you are extremely upset right now. Let’s talk about it, because my job is to hear what your concerns are.” Explain that “we take complaints seriously. So right now please set forth in detail what issues are of concern to you.”
If the staffer later calms down and doesn’t want to press the matter, continue with the investigation just to verify and document that nothing has happened.
Don’t make any promises of action. But do be certain to say there can be no retaliation for making a complaint and that if retaliation occurs, the staffer must report it. Then listen. There may be no complaint at all. The employee may just need to vent. But for safety, show that the office is not making light of the concern. That alone is often enough to defuse the emotion and head off a potential claim – legitimate or otherwise.
