Q: One of our managers, who is over 65, hasn’t been performing well. In the most recent incident, he gave away services to a family member for free. This violates our policy, but is it enough to justify terminating his employment? We have supporting documentation, but we’re worried about age discrimination.
A: The most important thing you can do to protect yourself against both the risk of committing discrimination and the appearance of doing so is to be consistent: ensure that whatever violation you’re basing the termination on, the same consequences have been applied to others in the same situation. If others have been reprimanded but not fired, then this employee too must only be reprimanded. If a violation is the sole reason for a termination, you must be able to prove that you consistently applied that same policy in other cases.
However, a violation doesn’t have to be the sole reason for a termination. You could base the termination on the culmination of this employee’s past poor performance, which you have documented.
When asking yourself if a situation is discriminatory (i.e., represents age discrimination, etc.), ask yourself if employees in similar situations were treated along the same lines as what you’re thinking of doing. If so, you know that you’re not treating this individual differently and it’s not discrimination. As always, documentation is important. Plus, as a best practice, allow all employees the chance to correct their behavior before you let them go.