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Chapter 13. I Fought The Law and …? > Disciplinary Issues—Do You Have Protectio... - Pg. 133

I Fought The Law and ...? 133 It is a swamp, and a somewhat dangerous one. Certainly it's an unpredictable one. So what's the solution? If we never know for sure whether the courts will support a specific decision, what do we do? No managers want to get their butts sued when there is always a chance those butts will lose. The solution, such as it is, is not to get into the legal system if you can possibly avoid it. That means doing things according to the best available practices so an employee isn't given an opportunity to begin legal action. By doing things properly, you discourage lawsuits. Disciplinary Issues--Do You Have Protection? Before we jump into the generally accepted protective steps you need to take when initiating disci- plinary action, let's talk about where the landmines lie. Let's assume you live in the U.S. (although this may apply to other countries), and you live in a state that is at-will, which means you don't have to prove cause for dismissal. On what basis can employees fight back? According to Title VII of the Civil Rights Act of 1964, employers are prohibited from discrimination on the basis of race, sex, color, religion, or national origin. The Federal Age Discrimination Act protects employees from age discrimination, while the Americans with Disabilities Act protects dis- abled people. In addition, the National Labor Relations Act protects workers' rights to form unions or band together to protest working conditions. Other prohibitions are getting added to the mix, or will be. The most notable, and one that is being contested in various jurisdictions, is sexual orien- tation. What does this have to do with your venomous or nonperforming employee? If your employee falls into any category related to Title VII, they may contend that the disciplinary action you took was not related to their job performance or work behavior, but to their gender, color, ethnic origin, religion, and so on. And guess what? They don't have to prove that's so. It is your responsibility to prove the disciplinary action you took was based on performance. That's right. An employee can accuse you and unless you can prove otherwise, you're likely to have a problem. Whether you agree with this or not, you need to understand it. From the Manager's Desk If an employee accuses you of discrimination as a result of disciplinary action, it will be your responsibility to prove that isn't so. The only way you can do that is prove that the action is a result of work-related or perform- ance behavior. Hence, you need to keep records of specifics. The laws protect employees in other ways. For example, some jurisdictions have what are called whistle-blower protections. A whistle-blower is a person who attempts to inform others about illegal or dangerous practices occurring in the workplace. If you attempt to fire a whistle-blower, even if it's a result of poor performance, it may appear that you are doing so because of his or her whistle-blowing activities.