Don’t Make These Mistakes When You Fire Someone

Over the weekend [a few weeks ago], I read this federal court opinion involving a woman’s claims that her former employer violated both the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 (based on her gender) when it ended her employment.

The court does a nice job in its opening paragraph of framing the dispute:

[Plaintiff] managed a [one of Defendant’s] store[s] in a Michigan City, Indiana mall. She had previously suffered nerve damage in a car accident, which somewhat limited her use of her hands and caused them to be atrophied, though that condition did not prevent her from doing her job. [Plaintiff] alleges that during an inventory count in January 2016, her boss first noticed her hands’ appearance and remarked that they “are disgusting.” Several months later, he fired [Plaintiff], citing an excessive “shrink rate,” or loss of inventory. [Plaintiff] contends that this explanation was inaccurate and pretextual, and that the real reason was her boss’ disapproval of the condition and appearance of her hands. In this suit, [Plaintiff] claims that she was fired because of her disability and because she did not conform to her boss’ expectations for how a woman should appear.

If you skip ahead to the end of the opinion, you’ll see that the plaintiff survived the defendant’s motion for summary judgment on both her disability and gender discrimination claims. That’s because the court decided that a reasonable jury could conclude that the company’s “shrink rate” explanation was a pretext for discrimination.

But why? I’ll explain with four mistakes that managers and HR often make in these situations:

First, don’t ignore employee explanations for performance issues.

For example, in this case, the plaintiff’s manager recommended that she be fired because the location she managed had a high shrink rate in 2015. However, between the time when the manager discovered the high shrink rate and when he recommended that the company fire the plaintiff, she emailed him and otherwise tried to communicate problems with the audit. According to the court’s opinion, the manager ignored the plaintiff’s communications.

Would the plaintiff’s explanations have been true and accurate? Who knows? But, the manager ignored them. That matters. A jury will sort that out.

Second, be consistent.

The manager ignored the plaintiff’s explanations of the high shrink rate in 2015. But, he didn’t ignore her explanations for a previous inventory count in July 2014 that also resulted in a high shrink rate. After discussing an inaccuracy with the July 2014 count, the company conducted a new inventory count, which accounted for discrepancies and the shrink count went down.

Why wouldn’t the manager have handled the later audit the same way? That’s now for a jury to decide.

Third, avoid comments about an employee’s appearance.

What could have explained the manager’s change in behavior? Well, the plaintiff claimed that during the later inventory count, he noticed her hands for the first time and called them “disgusting.” The plaintiff further alleged that, after the manager’s rude comment, he didn’t communicate with her as much and was less friendly.

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True? Coincidence? Generally, a jury will answer those questions when a manager is accused of commenting about an employee’s disability.

Fourth, no rubber stamps from HR.

According to the Court’s opinion, the plaintiff’s manager told the company’s human resources representative that he wished to fire the plaintiff for the poor shrink rate. So, he drafted a corrective action form and received approval. But, what’s unclear from the opinion is what HR actually did to vet this termination decision. Did HR review prior “shrink rate” audits or other communications between the plaintiff and her manager? Did HR question the manager’s decision? What exactly did HR do to satisfy itself that the termination was warranted?

When the answer is ¯\_(ツ)_/¯ , generally, a jury gets to sort that out.

What next?

It’s altogether possible that the employer terminated the plaintiff’s employment solely because of the 2015 shrink rate audit results. But, even with the manager’s alleged dumb remark, had the employer handled this situation with better communication, systems, and consistency, it could have obtained summary judgment.

Or avoided litigation altogether.

This article originally appeared on The Employer Handbook blog.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.