to Avoid Discrimination Charges
the last few years, it has become more common for employees who experience
a demotion or termination, or other adverse employment decision -- as
well as job applicants who fail to obtain a desired position -- to file
charges of discrimination with the Equal Employment Opportunity Commission
In filing discrimination charges, employees commonly allege that a supervisor
based an adverse or unfavorable employment decision on race, gender, national
origin, religion or disability rather than legitimate performance issues
Even though taking every possible precaution does not always deter an
employee or a job applicant from filing a discrimination charge, certain
precautions do assist in the defense of discrimination charges and greatly
decrease the possibility that the EEOC will determine discrimination exists.
District policy requires annual job-performance evaluations of all employees,
though many supervisors overlook this important requirement.
No supervisor looks forward to giving an employee a negative performance
evaluation, but truthfully evaluating an employee's performance will later
support an adverse employment decision. Some supervisors give underachieving
employees positive evaluations hoping to encourage better performance.
method often backfires when an employee's performance does not improve
and the supervisor wishes to terminate the employee or selects a better
performing employee to fill a vacant position.
Consider Jane, a management employee, who interviews with a committee
for a promotion. She is one of three candidates referred to her supervisor
for final selection.
The supervisor selects Jim, who the supervisor believes is an exceptional
employee. Jane files a charge with the EEOC alleging the supervisor failed
to select her based upon her race and sex. The supervisor contends Jane
was not selected because of her insubordinate attitude and her inability
to cooperate in a team setting. However, because the supervisor did not
uncooperative and insubordinate attitude in performance evaluations and,
in fact, Jane's evaluations mirror Jim's, the employer will have a difficult
time defending Jane's charge.
Supervisors should also document poor performance or inappropriate behavior
between evaluations. A brief memo describing performance deficiencies
and how the employee brief memo describing performance deficiencies and
how the employee should improve will support a future negative evaluation
and assist in defending discrimination charges. Supervisors should remember
that an employee might use memos or e-mails in support of discrimination
All communication regarding performance deficiencies should factually
and concisely address the issue in question. This is especially true when
an employee has alleged discrimination in the past and may allege a separate
charge of retaliation.
When a supervisor does not select an employee for a promotion -- or makes
other employment decisions adverse to an employee -- truth is often the
Consider Joe, an underperforming employee whose supervisor terminates
him and orally informs him that the termination is necessitated by a reduction
in program funding.
When Joe files a charge of discrimination claiming that his supervisor
terminated him based upon his sex and race, the supervisor contends that
Joe poorly performed his job duties.
Because the supervisor did not disclose to Joe the true reason for termination
of his employment, the employer will have a difficult time defending Joe's
charge. It is better to cite no reason for a negative employment decision
than to cite an inaccurate reason.
When a job vacancy arises, supervisors often believe reassignment of an
employee to the open position will avoid delay in filling the position
and reward a deserving employee. Unfortunately, filling position vacancies
without a competitive hiring process invites discrimination charges by
employees who believe they are qualified for the position but did not
Consider Jill, a long-time employee whose evaluations verify her hard
work. When a supervisory position opens in her department, she waits for
a job announcement and hopes to submit an application. When she discovers
John obtained the job through reassignment, she files a charge alleging
sex and race discrimination.
Because the employer did not fill the position competitively and Jill
demonstrates her education and experience not only qualify her for the
position but approximate Jim's, the employer will have difficulty defending
A competitive hiring process provides the documentation necessary to demonstrate
the employee selected is the most qualified for a position.
Taking simple steps to avoid discrimination charges will save the time,
energy and resources necessary to defend charges and will improve communication
in the Winter 2001 Edition of In Brief