Memo To Managers from the HR Specialist

The Dirty Dozen:
12 Manager Mistakes that Spark Lawsuits

Even worse, some laws—including federal overtime law and the Family and Medical Leave Act—allow employees to sue their supervisors directly, meaning a manager’s personal bank account could be at stake.

Here are 12 of the biggest manager mistakes that harm an organization’s credibility in court. Use these points as a checklist to shore up your personal employment-law defense:

Most discrimination cases aren’t won with “smoking gun” evidence. They’re proven circumstantially, often through documents or statements made by managers. Documents, particularly e-mail, can help the employee show discriminatory intent. The lesson: Always speak and write as if your comments will be held up to a jury someday.

Courts expect supervisors to know their organization’s policies and procedures. If a manager admits ignorance, legal experts say juries typically view that as purposeful, not forgetfulness.

Performance reviews are one of the most important forms of documentation, yet managers sometimes inflate the ratings for various reasons. If a manager later tries to cite “poor performance” for that same person’s termination or demotion, those overly positive appraisals create a heap of credibility concerns.

Turning a blind eye to any employees’ complaints of unfairness or perceived illegal actions is a guaranteed credibility buster. Comments like “I’m not a baby sitter” or “Boys will be boys” will hurt employee morale and jeopardize your standing in court.

It may be easy to answer the question, “Why did you hire that person?” But managers often run into trouble when they have to answer, “Why did you reject certain other candidates?”

If an organization changes its reasoning for making an adverse employment decision (firing, discipline, demotion, etc.) in midstream, its credibility is shot.

Most managers hear the mantra, “Document, document, document.” But it’s possible to overdocument, especially when it occurs right before a firing. Courts will be able to see through a rush of disciplinary actions cited in the days before a termination.

An organization can have the best case in the world, but if the key supervisor comes across as rude, insensitive and mean, the attorney’s job of selling the case to the jury will be much harder.

When responding to charges filed with the EEOC or state agencies, employers often have to submit position statements. Managers may be called upon to help provide some of that information. You can bet the employee’s attorney will review these statements, particularly affidavits, and introduce them at trial, especially if your story has changed. Keep your story consistent.

Juries will expect—and the plaintiff’s lawyer will encourage them to expect— that employers stay abreast of developments in employment law. Refresh yourself regularly on your organization’s policies, read communications sent from HR and, when in doubt, ask questions.

Under federal law, employers must make “reasonable” workplace changes to accommodate an employee’s disability. How to choose those accommodations? It must be a give-and-take process to reach a solution, the law says. Managers too often try to dictate the solution.

Managers who fire without first trying to improve the worker’s performance will appear insensitive and potentially discriminatory in court. Conversely, managers who try to improve things before resorting to firing will stand a better chance of avoiding a lawsuit.