It is SO DARN EASY for one of your employees to pursue a discrimination claim. But, here’s the thing…

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How easy is it? Easier than Sunday morning, which is easier than beating the New York Mets on Sunday afternoon.

Fired after a DUI.

I’m going to tell you about this case where an African-American man with alcoholism, sued his former employer for firing him because of his race and disability.

Here are the facts of the case, according to the plaintiff. He was a probationary, at-will employee. In his third month on the job, the plaintiff got a DUI arrest and his license was suspended for six months. The plaintiff told his employer about the arrest and license suspension. The plaintiff proposed a few options to his employer about how he could perform his job without a driver’s license. However, the District fired him while he was on probation, asserting “unsatisfactory performance.”

The plaintiff claimed that the employer’s explanation was a pretext for race discrimination and because it regarded him as an alcoholic.

No lawyer? No problem.

Initially, the plaintiff sued without a lawyer. He eventually got one, but that lawyer withdrew. So did the next three lawyers too. Nonetheless, the plaintiff soldiered on. He filed several “sprawling amended complaints, each over 70 pages.” The trial court dismissed two of them as too long. The plaintiff withdrew the third.

Finally, the trial court had enough and dismissed the case with prejudice. So, the plaintiff appealed to the Seventh Circuit Court of Appeals.

And you know what? The Seventh Circuit breathed new life into the race and disability discrimination claims. Check out some of what the Seventh Circuit had to say about the race discrimination claim:

[Plaintiff’s] complaint states a claim of race discrimination. A plaintiff alleging race discrimination need not allege each evidentiary element of a legal theory to survive a motion to dismiss. Rather, [he] needed only to allege—as he did here—that the [employer] fired him because of his race. `I was turned down for a job because of my race’ is all a complaint has to say.

“I was turned down for a job because of my race” is all a complaint has to say.

Now, how about the disability discrimination claim? Remember, the plaintiff admitted that he got a DUI and license suspension and told his employer about it:

[Plaintiff] has pleaded disability and retaliation claims under the ADA….[W]e read [his] complaint as alleging that the [employer] regarded him…as an alcoholic because of his suspended license for driving under the influence of alcohol, and then concluded from his suspension that his alcoholism impaired his ability to work at any job that involves safely moving items across a facility.

Of course, the plaintiff will eventually have to prove these allegations. But, according to a federal appellate court, that’s how easy it is to litigate these claims of discrimination.

So, what’s an employer to do?

Just because the plaintiff can pursue discrimination claims after employment ends doesn’t mean that s/he will. And even if an employee does file a Charge of Discrimination with the EEOC or sue you in federal court, it doesn’t mean that the employee will win. There’s a big difference between alleging discrimination and actually proving it.

But, here are some ways employers can mitigate the risk.

  1. Document performance issues. If you are going to discipline an employee or terminate employment, make sure that the underlying reasons are well-documented. Otherwise, a jury may assume that if there is no documentation, well, whatever supposedly happened never actually did.
  2. Don’t act scared. Some employers get gun-shy about disciplining employees because they fear the subsequent discrimination claim. But, if the employee did something bad that warrants discipline (e.g., s/he violated your written work rules), you document and communicate the issue. Indeed, uneven discipline or ignoring your policies and procedures can lead to discrimination claims.
  3. Settle early. You run a business. Part of your job is risk management. For example, maybe you’ve purchased employment practices liability insurance. Consider also offering a departing employee severance in exchange for a full release of any claims s/he may have. That may buy you peace of mind.

“Doing What’s Right – Not Just What’s Legal”