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The “don’ts” of recommending a termination

May 05, 2011

On April 25, 2011, the Tenth Circuit Court of Appeals published a case that illustrates a fairly common problem – how should an employer document its termination recommendations or decisions?  While the court ruled in favor of the employer, the case, Crowe v. ADT Security Services, Inc. (available here), serves as a good example of how not to recommend an employee’s termination.

Wythe Crowe, who is African-American, worked for ADT for approximately ten years between 1997 and 2007.  During his employment with ADT, several of Crowe’s co-workers accused him of sexual harassment.  Additionally, ADT disciplined Crowe for insubordination and unprofessional behavior on numerous occasions.  Between 1999 and his termination in July 2007, Crowe had accumulated twenty-three disciplinary actions, five of which related to sexual harassment accusations.

After receiving a series of complaints against Crowe between December 2006 and May 2007, and after issuing a final warning in January 2007 (Crowe had already received other “final” warnings), ADT assigned a human resources representative, Ms. Laurila, to review his personnel file and make a recommendation.  Until this assignment, Laurila was not aware of Crowe’s history as an ADT employee.  Upon reviewing Crowe’s personnel file, Laurila recommended that ADT terminate Crowe’s employment.

In her termination report, which she provided to ADT’s Human Resources Director, Laurila made several observations.  First, she wondered why ADT had “allowed Wythe to treat management and specifically, women in positions of power, with such disrespect?”  Laurila opined that Crowe’s “harassing and disrespectful abuse” was “against the law at any company in this country.”  In addition, Laurila commented that if one of the supervisors, whom Crowe had called a racist, filed a claim against the company, “ADT could lose because we were not there to protect all employees from a hostile work environment that is free from harassment.”

Regarding her rationale for termination, Laurila added that “[t]he ramifications of not terminating Wythe Crowe could be huge!”  Laurila expressed concern about what ADT would do if a white male employee acted as Crowe had during his employment at ADT.  She stated:  “If we decide to fire this [hypothetical white employee], we have now set ourselves up for a reverse discrimination lawsuit.”  Laurila also believed that ADT had set itself “up for a potential lawsuit due to the precedent we have set by allowing Wythe Crowe to continue his employment at ADT.”

ADT took Laurila’s advice and terminated Crowe, who then sued ADT claiming race discrimination under Title VII. Crowe cited Laurila’s report, particularly her statement about reverse discrimination, as direct evidence that ADT terminated him because of his race.  Although the district court and the court of appeals held that the report simply recommended consistent enforcement of ADT’s policies, ADT could likely have avoided the issue altogether if Laurila had justified her recommendation by citing Crowe’s extensive disciplinary record and his repeated violations of ADT policies.

To avoid similar mishaps, employers should train human resources employees on proper procedures for making personnel recommendations.  In particular, employers should focus on the “don’ts” associated with these procedures and train human resources employees to focus on the facts of a particular situation.  An evaluation of the merits of an employee’s potential claim against the company has no place in recommendations for any employment action.  While training employees in this regard will not insulate an employer from employee complaints, having documentation that relies solely on an employee’s disciplinary record, as opposed to a human resource representative’s legal opinion, will help minimize an employer’s exposure.

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