Reprinted from the June 15, 2007 issue of MANAGER'S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

How A Manager's Gaffes Can Add Up To Discrimination

You're not perfect, but you shouldn't get sued because of that, right? The realities of workplace life might mean being late in giving an employee a performance review or transferring a worker for a longer time than originally anticipated. Discover how those innocuous management actions became proof positive of bias.

COMMON MANAGEMENT MOVES...

February 2005: Buck Tarver becomes Lydia Mortez's manager. He documents co-worker complaints about 63-year-old Mortez and his own observances of her poor performance.

October 2005: Mortez repeatedly reminds Tarver that she needs him to complete her annual performance review so she can obtain her pay raise. Tarver says he is preoccupied with filling open positions due to a rash of resignations. He transfers Mortez from her office position to one of the open plant positions, where she'll have to work 12-hour days in virtual isolation. He assures her this is only temporary and estimates that she will be back in the office within a month.

January 2006: Tarver gives Mortez her review, albeit a less than stellar one, which comes with a recommendation for termination.

March 2006: Mortez is still at the plant — until the company follows through on the termination recommendation.

...MORPH INTO EMPLOYEE EVIDENCE

Mortez fires back with an age discrimination lawsuit, citing the late review and long transfer. The company cites poor performance.

Working against the company: 1) Tarver's inconsistent and questionable explanations of why her review was late, which ranged from that it slipped his mind and he was too busy to that he thought she was planning to transfer to another department and he didn't want a poor review to hamper her efforts. Both were suspect, in and of themselves, since Mortez repeatedly reminded Tarver about the review and he wasn't too busy to complete younger employees' reviews on time; 2) his testimony that he never intended for Mortez to return to her office position, despite his reassurance to her; and 3) her evidence that younger workers with similar performance problems were treated more favorably. Upshot: An appeals court upholds a $199,200 jury verdict in favor of Mortez.

DON'T MAKE THE SAME MISTAKES

Generally speaking, a late review or a longer-than-expected transfer won't rise to the level of actionable bias as long as:

• You have a reasonable explanation for being late. Being too busy, or even too lazy, are acceptable in court because those reasons are not tied to an employee's protected characteristic.
• You act consistently. Finding the time to evaluate some employees, but not others, will not be acceptable in court. The court will explore why you made the effort for some and not others.
• You tell the transfer truth. Let the employee know why he/she is being transferred. If it's because of unacceptable performance, explain that his/her skills are better suited in the new position. Never transfer a poor performer to a less-than-desirable position in the hopes that it will "encourage"the employee to quit.

Be honest in the expected duration of the transfer, also. If you want it to be permanent, say so. If you can't transfer the employee back within the estimated time frame, explain why.

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