With the U.S. Supreme Court’s recent flurry of activity in the employment arena on discrimination and retaliation, the Court’s decision to hear one particular labor case seems to have gotten lost in the hullabaloo. And a ruckus, after all, is what one is bound to find whenever The Beatles are referenced.
Employers who have yet to put the Genetic Information Non-Discrimination Act (“GINA”) on their radar should probably re-consider their priorities. The Equal Employment Opportunity Commission (“EEOC”) is already at the point where the agency isn’t just bringing suits to enforce violations of that law, it is now settling them.
Making the decision to discharge an employee is not an easy one. Hopefully, not all of our readers know the feeling. However, the FOX network is giving viewers a glimpse into what it’s like to be the boss on a new reality show titled “Does Someone Have To Go?” It was suggested to me by my editor that this series might be ripe with topics for this column. He wasn’t wrong.
By combining the best of Survivor and Jerry Springer, the premise of the show begins with the notion that all workplaces have dysfunction. Of course, since everyone thinks they can do a better job running the company, the owners tell their employees to have at it: for the next 48 hours, they are to identify the three employees who are the biggest problems and decide whether to put them on probation, cut their pay, or fire them. Two weeks earlier, everyone had the chance to vent about their co-workers in front of the camera. Now, those clips are played to the new collective “boss” showing what everyone really thinks of each other, and that’s where my employment attorney heart first seized up. On national television, these folks start labeling each other. I’ve seen the nice older lady whose memory is going. I’ve heard them talk about the alcoholic. Others are outdated, lazy, annoying, and controlling. Another is chronically absent (and she blames it on health conditions).
For those of you in HR, the buzz words in that last paragraph probably have you feeling a little nervous. While troublesome enough that the employees who made these comments and hold these opinions are about to make discipline and discharge decisions affecting these folks, there’s still one more surprise before they do: pictures of each person flash up on the screen with their salary and their years of service. Armed with this information, the group breaks up into their natural cliques and discusses who should be placed on the chopping block.
Ultimately, the three candidates with the most votes are selected and thereafter, each makes an appeal to the collective “boss” on why they should stay. The group then decides the fates of the three, and the owner returns to observe the meting out of punishment. The cameras come back to the business three months later to check in and see how things have been. Miraculously — poof: the dysfunction is gone, and business is booming.
In all frankness, there’s some value to showing people how emotionally challenging it can be to have to make the decision to discharge an employee. You’ll hear folks on the show repeating, “It’s just business.” Of course, that part is right. But, the way the decisions are made on “Does Someone Have To Go?” are not how they should be made in the real “reality.” For instance, the decisions on the show do not take into consideration company policy, the contents of personnel files, or past practice. No employer should make a discipline or discharge decision without determining whether company policies have been violated. Also, the employee’s file should be reviewed to determine if counseling or warnings have been given to the employee. Last but not least, consistency in treatment is fundamental to fairness – and that’s really what a jury is looking for. If others in the same situation were treated differently, you could be facing a discrimination charge.
In the real world, employers should not discharge or discipline employees based upon generalizations. For instance, “outdated” is a term that begs for an age discrimination claim. Instead, you should say he or she refuses to use the new computer program the company has trained all of its sales associates to use to boost their sales. You also shouldn’t call an employee lazy; rather, an employer should say he or she hasn’t met goals in three months despite two coaching meetings to drive improvement. Finally, employers certainly shouldn’t call an employee an alcoholic; it should use progressive discipline and try to get him or her in an EAP.
The show doesn’t get it all wrong. The employees up for elimination are given the opportunity to appeal to the group. Those that take advantage of that time to educate their peers on what their jobs actually entail and the specific steps they will take to fix the problems identified fair far better than those who take offense or tell a sob story. The actual “boss” also does a good job with the folks who are placed on probation. They identify specific goals to be met in three months, and they follow up. Those elements notwithstanding, the show certainly is far from a picture of the way things are supposed to work at work.
All told, you certainly can check out FOX’s new show for the entertainment. But if you start to get ideas, be sure you consult the HR and employment practice guidance from the Employment Essentials blog team along the way. You may need it.
Plaintiff’s lawyers will be lamenting the Supreme Court’s decision in Nassar as a stunning blow to employment retaliation suits for years to come. In a 5 to 4 decision, the Court held that unlike “status-based” discrimination (i.e. discrimination on account of sex, religion, color, race, and national origin), employer retaliation for an employee’s opposition, complaint, or effort to seek remedy for unlawful discrimination requires a showing that the adverse employment action would not have occurred “but for” the employee’s act.