How to Avoid Gender Discrimination Claims After Discharging an Employee

Although federal law prohibits gender discrimination against any person, the vast majority of gender discrimination claims are pursued by female employees. You can legally discharge a female employee for any gender neutral, non-discriminatory reason. However, a gender discrimination claim is possible in cases where the employer’s expressed reason for the discharge is subject to dispute.

Difficulty: Moderate

Instructions

1. Before terminating the employee, ensure that any required progressive disciplinary measures, such as verbal and written warnings, have first been provided.

2. Consult with department or unit managers of similarly situated employees to ensure that male employees have been disciplined similarly for similar infractions or performance issues.

3. Document the reason for the employee termination in a separation notice that is placed in the personnel file.

4. Ensure that the same reason is listed on subsequently completed documentation, such as responses to claims for unemployment compensation or responses to EEOC filings.

5. Replace the terminated employee with another person of the same gender if possible.

Tips & Warnings

• There can be no inference of gender discrimination when the decision maker is of the same gender as the fired employee. It therefore behooves the employer to have at least one male and one female management level employee decide on termination.
• It is also difficult for a terminated employee to claim discrimination when the persons responsible for the termination also hired the employee. If possible, involve that person in the termination decision.
• To challenge the employer’s asserted reason for a termination, the terminated employee may point to inconsistent explanations. It is imperative to document the reason for firing at the time of discharge and to avoid inconsistencies in documentation.