Court here we come???

JKK

Need some of your wonderful advice and guidance regarding an employee...
We have a minority employee (yes, black and female). let me call her Sue, that has been working for us for just over 3 years.
During this time, she has visited my office on several occasions with problems about her unfair treatment. Firstly, it was her supervisor who had no right to speak to her like that, she was being singled out, it is discrimination, etc. This turned out to be that during coaching sessions (she was a contact center employee at this time) she was reprimanded for how she spoke to customers - that her tone could sometimes be a bit abrasive, - this to her was discrimination.
This situation was overcome, when she applied for and recieved a promotion (I think the supervisor had a hand in this but I can't be sure). Six months after this there was a very major incident involving another employee, also a minority employee (hispanic and female). Personality wise these two definitely did not get on but worked in different departments. A situation arose where both lost their temper, and according to Sue the other employee rose her hand to hit her. Investigating this I discovered that Sue and her Manager had confronted the other employee in her office and were between her and the door, the employee felt trapped and wanted to get out of her office. This situation was never resolved as the trapped employee was shortly after this diagnosed with cancer and died several months later.
Next visit from Sue was regarding her co-workers, again, I'm not going to be treated like this, I demand respect, I won't be spoken to like that, I won't have people discriminate against me... etc. etc. When I asked her what had occurred it all had something to do with not having been invited to an out of office barbecue, not being asked if she would like a cup of tea when they asked everyone else (but when questioned she told me she doesn't drink tea or coffee, but its manners to ask!) and the final blow up had been because she needed to print off a document that was going to take quite some time and her co-worker said that she really needed to complete what she was printing first. The co-worker resigned shortly after this and again this situation resolved itself.
Now we get to the real crux of the story - after restructuring Sue's role has moved to a different department with a new manager. He has been very supportive and tried to assist her in learning and developing new skills, but her attitute (she gets very indignant about anybody saying anything about an attitude, she does not have one according to her)has finally caused him to say enough is enough. He was forced to take her on, and he really wants to change his department and her role is no longer absolutely necessary, he wants to replace her with a different role and skill set.
I, however, think the minute we try this she is going to head to EEOC and claim discrimination and I don't have a real lot of paperwork regarding the previous issues - mostly just diarised notes, and of course her performance appraisals say she has done fine. Should we make her redundant by using "at will" or should we clearly say it is a restructure issue?
Sorry its such a long posting but I wanted to give you the background so I can get informed opinions.
Thanks in advance for your replies and I promise not to take anything personally.

Parabeagle

First, I can only say I'm glad Sue doesn't work for my company.x;-)

Unfortunately, I'm guessing that regardless of how you wrap it and tie it up with a nice, pretty bow, any termination is going to be 'discriminatory' in this employee's mind. I think I would get all my documentation (such as it is) together and just expect to have to defend. Remember, Sue is the one who is going to have to explain to the EEOC how the problems she's encountered relate in some way to her protected class status.

My primary concern would be the number of occasions she has grumbled to you or others about "discrimination" and "unfair treatment" and not having any documentation to back up how you handled the situations as they arose. Hopefully you at least have diary notes to support the fact that you looked into these situations immediately after becoming aware of them.

If you can point to valid business-related reasons for brooming this employee's position, I think that is your most defensible scenario.

But again, unfortunately I think you're going to be dealing with a charge regardless of how you handle it. Employees like her usually have the EEOC on speed dial. Good luck.

Don D

I don't know what EEOC Regional Office Parabeagle has dealt with, but I've never known a complaining party to "have to show how the treatment was related to race or sex". All they have to say to the EEOC staffer is "I just know it was" and you're off to the races. Of all the charges that have crossed my desk, I have never seen one that contained anything other than a few checked boxes followed by a lengthy demand for record production. Then the company has the onus of showing otherwise, that any action taken was for reasons other than race, sex, etc.

That notwithstanding, to answer your question, it would always be more defensible for a well planned, well documented reduction in force to be the cause of job elimination than citing 'at will' for your dismissal of an employee. When she charges race and sex, your 'at will' defense will sink immediately. You will spend the next 25 days defending those allegations. And that's just the time you'll spend getting ready to respond to the EEOC. Set aside about a year and a half for this one.

This scenario is going to be a tough hill to climb. She complains to you about discrimination (if even in her mind's eye) and her position is eliminated. Hmmm.

Shadowfax

Hang on JKK - you're in for a ride! First reprimand rewarded with a promotion. Looks good for the co.-or- maybe e/ee figured out it pays to bitch and whine. Second problem (with the other minority e/ee)you have no witness (sorry about that) so whatever happened there is whatever problem e/ee says happened. SOL!
Third time around she's unhappy with social issues and/or having to wait for the printer. Other e/ee is, hopefully, still alive and argubly a good witness because her job no longer depends on her testimony. But, how many times and how much energy are you prepared to spend to deal with this before it bites you in the butt? 'Cause it will, sooner or later, so decide if you want to deal with it today or later. If, you have a sound business reason to plan her out of the department, do it now and defend yourselves. The situation will only get worse, and your reasons to let her go may get less defensible. My experience is that the longer you put up with a problem, the more you try to apease someone, the more you're gona pay - it's only a matter of when (and how much).

Margaret Morford

I think Shadowfax raises a great defense. Sue complained about her treatment and she gets promoted. I certainly would use that to show that she was never retaliated against when she complained. I'd demonstrate her pattern as a constant complainer that plays the race card everytime things don't go her way. I also think the supervisor shouldn't be afraid to write her up for "attitude." He needs to not use that word as it is judgemental, but simply spell out the specific facts that make her so difficult to deal with. I'd include in that write-up that she always alleges she is being discriminated against everytime she is coached. You can defend that by showing other white employees that are coached as well.

Everyone is correct. She's going to go to the EEOC no matter what you do. Line up your case. (You may want to review it with an employment attorney.) If she's part of a lay-off and you can defend her selection for lay-off, that's the best time to rid yourself of this person.

Good luck and keep us posted.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

mbeam

Would agree - you can pay now or later. If it's later, how many good people will you lose along the way - could be that people are leaving rather than faced with the prospect of working with this "star".

Do you have notes from these meetings? There's no rules that I'm aware of that dictate having to spend your off the clock time with an unpleasant co-worker - per the barbecue comment. Also, thought it was interesting that she immediately jumps to the fact that people are discriminating against her because coffee or tea wasn't offered - could be simply they knew she didn't drink it. Sounds like she's someone that does no wrong - it's always someone else's fault....personal accountability isn't in her vocabulary.

When mentioning things to her, would look to use the word "behavior" versus attitude and cite examples. What do her performance evaluations look like?

Rockie

I agree with Shadowfax and Margaret about the promotion. If this goes to court, the first thing that will be latched onto is "if she was such a lousy employee, why was she given a promotion?" Bottom line was: Someone wanted to pass along the problem to someone else and now it's everyone's problem.

I have had similar situations with minority employees who have whined and complained about "discrimination" when actually, their issues are the same as any other "non-minority" employee. They don't want to obey rules and regulations, they have a difficult time getting along with co-workers; they don't get their way...etc. and so on.

Documentation is especially crucial when dealing with employees with this type of behavior, be they minority or not. If you hire a person and they start out this way...it's critical to get them out of the company as soon as you can. Don't pass them on to someone else...the problem won't go away.

Whatever you do with this person now, you are more than likely going to have to face an EEOC charge. I would go through and gather whatever documentation you may have on her...also keep a timeline of her behavior, etc. much as you have stated above.

Good luck.

WT

I would advise that you not terminate this employee. It looks to me like there has been a good deal of avoidence in this case. All parties want to avoid dealing with this unpleasant individual. Even the reviews do not accurately reflect the problems with her. Now, the final tactic is to fire her in order to avoid dealing with her. How would you like to be ordered to take her back, pay back pay, and be stuck with a problem employee with an enormous chip on her shoulder and a charge of retaliation in her back pocket? Problem employees are just that. They seldom change their ways. Further, they will just keep proving you right over and over again if you are patient. Restructure as is needed by business necessity. Counsel the employee on problems and document what you do. Require the supervisor to be honest in reviews. Stop the avoidence and get into the issues at hand. If you do that, perhaps you can dodge the bullet. Good luck.

janeS

Too often I think we all try to make decisions based on what the EEOC may think...and sometimes shoot ourselves in the foot by prolonging either our own agony or the non-performer's.

That being said, restructuring is certainly a viable route and you have received some great responses. I'm just curious if you have a policy related to "Initial Employment Period". Here, our new hires go through a 90 day initial employment period whereby if they sneeze the wrong way, basically, we can terminate. Our "Transfer Policy" includes this "Initial Employment Period" piece in that no matter your length of service within the organization, if you transfer, (or if due to business necessity we have to transfer you) you are considered to be in a 90 day initial employment period. So...long story short...do you have anything like that and has she been in her current position for longer than 90 days?

js

JKK

Thank you for everyone's comments, I thought the response might be a bit like this.
JS, unfortunately Sue has been in the current role more than 90 days so we can't use that avenue.
I was not with the company when they first hired her, but joined soon after. I have to admit that I wouldn't have hired her in the first place, but the supervisor at that time was very into hiring minorities, most of which have not worked out. That isn't to say that we don't have minorities in other departments, it's just the supervisor's idea of interviewing people was almost based solely on determining their astrological sign and whether that worked with the rest of the team - needless to say I have certainly stopped her from being involved in the interview process (in fact, I have managed to move her out of a staff supervisory role altogether).
I totally agree that there has been an avoidance issue, but all my manager's seem to be totally afraid of being absolutely honest with anyone for fear they might not be liked!! Then of course it's up to me to solve the situation.
I have to add that our head office has hired a new HR Director who is trying to transform the HR team into consultants, that assist the manager's rather than do the dirty work but miracles don't happen overnight unfortunately.
In the meantime I will gather what paperwork I have, the position has to be restructured, and will await the dreaded EEOC.
If you think of any good tactics for dealing with this please let me know
JKK