Reducing Risk When Taking Adverse Employment Action

January 20th, 2017

Any time an employer takes an “adverse action” against an employee there is a risk of the employee claiming that the decision was made for any number of unlawful reasons (e.g., sex, age or race discrimination, retaliation, etc.).  Discipline, demotion and termination are all examples of an adverse action. It is impossible to eliminate all risks associated with taking an adverse action, but the risk can be reduced by forcing yourself to consider the following six simple questions outlined below before taking any action.

Questions to Consider

  1. Is the employee a member of a protected class? (e.g., female, over 40, disabled)
  2. Has the employee recently made a complaint? (e.g., sexual harassment, workers’ compensation)
  3. Was the employee aware of the possible or probable consequences of their conduct?
  4. Has the employer applied its polices, rules, and performance expectations consistently to all employees?
  5. Was the severity of the adverse action reasonable compared to the seriousness of the offense and the employee’s length of service?
  6. Have you consulted an employment attorney or HR professional prior to taking the adverse action?

If you’re unsure if you should take action, it’s important to get help.  Making an adverse action decision too hastily can cause your business to be in litigation for years and even if you win the lawsuit, you’ve lost time, energy and money defending the claim.  This is a time when taking your time can save you more than you realize.