Employees regularly file a lot of employment lawsuits against employers.  There are lawsuits claiming discrimination, harassment, retaliatory discharge, wrongful discharge, defamation, invasion of privacy, breach of contract, outrageous conduct, and intentional infliction of emotional distress–just to name a few.

When these lawsuits actually go to trial, most of the time a jury decides who wins and who loses.  And during the jury’s deliberations, the “matter of fairness” is usually discussed.

What does this mean?  It means that the jury will, at some point, most likely ask this question:  Was the employer fair with the employee?

Accordingly, fairness must be on your mind when you deal with your employees–particularly in connection with disciplinary actions and terminations.

The appearance factor–Of course, it would be rare for a supervisor, manager, or human resources professional to admit that he or she had been unfair with an employee.  In fact, most employer representatives can honestly say they try to do the right thing–or they try to do what’s in the company’s best interest–or they simply follow company policy–or they take adverse action against an employee only when it’s justified.

But sometimes, despite best intentions, the action taken appears to be unfair.  Indeed, when it comes to the matter of fairness, the appearance of what happened is every bit as important as what actually happened.

Therefore, when you discipline or terminate an employee, you must consider how this action will appear to other people–specifically, how will it appear to a jury several months or several years later. 

The role of counseling--Most people expect to be counseled or warned or “talked to” if their job performance isn’t as it should be.  That is, they expect to be told what they are doing wrong and what they need to change before they’re terminated.

It’s the old “second chance” rule.  At the very least, most employees–and probably most jurors–will think that giving someone a chance to correct poor performance is the fair thing to do.

This isn’t to say, of course, that an employee can never be discharged without prior counseling or warning.  Some types of conduct could certainly justify an immediate termination–like stealing, fighting, testing positive for unlawful drugs, threatening a co-worker or supervisor, bringing a weapon to work, and serious safety violations.  But, most of the time, firing someone without previous counseling will flunk the fairness test.

The inconsistency factor–Another thing that clearly plays into the matter of fairness is whether an employer is consistent in the way disciplinary actions and terminations are handled.

If you fire an employee for something another employee has done without being fired, it will appear that you are being unfair.  If you discipline an employee for something that other employees have gotten away with, it will look as though fairness isn’t important to you.

Inconsistent actions often lead to discrimination claims.  For example, when you fire an African-American employee for the same thing that a white employee did without being fired, you’ve created the basis for a race discrimination lawsuit.  

The thing about documentation–Although documentation is often emphasized as a tool for preventing employment litigation, have you ever thought of documentation as a tool for promoting fairness? 

In the first place, the documentation in a personnel file should support any adverse action taken against an employee.  If documentation is inconsistent with the action taken against an employee, most people–most jurors–are likely to think that something isn’t quite right–that something isn’t fair.  That’s why it’s important for you to have a good handle on what’s in a personnel file before adverse action is taken.

Secondly, some employers turn the matter of fairness on its head by altering documentation in a personnel file to make it more compatible with the action taken against an employee.  If you ever do this–and you get caught (which is likely)–you will not only be viewed as being unfair but as being unbelievable.  In other words, if you get sued, you’re dead in the water.

Finally, documentation and fairness go hand and hand in another way.  There has been so much emphasis on documentation in recent years that employers are expected to document a personnel file–and if they don’t, something is wrong.   In other words, your failure to document could very well lead to a jury’s determination that you have been unfair. 

That’s because most of the people sitting on a jury have experienced performance appraisals, progressive discipline systems, and other employment procedures which lead to some type of regular documentation.  When they look at a case and don’t see this kind of documentation, it’s definitely a negative–and probably a sign of unfairness.

The reason for a discharge–The following question is sometimes asked by supervisors, managers, and human resources professionals:  Legally, do you have to give an employee a reason for discharging him or her? 

You might have to if you have a collective bargaining agreement with a union.  You might have to if you are a government employer and are subject to a statute or regulation that requires you to give a reason.  But for most private employers, the answer to the above question is no.

The question is:  Should you give a reason?  And the answer is:  Yes. 

How would you feel if you were fired and nobody told you why?  It’s likely you’d be mad.  It’s likely you’d feel that you’d been treated unfairly.

Accordingly, for the sake of the matter of fairness, it seems wise to always give a reason for discharge.  Moreover, doing this makes you spend more time thinking about what you’re doing and means that you’re more likely to handle the matter in a reasonable–fair–manner.

Of course, when you give a reason for a discharge, it needs to be the real reason–the reason that you can stick with if the employee does decide to file suit.  If you give an employee a reason for discharge, then change the reason when you respond to the employee’s unemployment compensation claim, then change the reason again when the employee files a charge of discrimination with the Equal Employment Opportunity Commission, and finally tweak the reason one more time when the employee files suit, you’ve created quite a problem for the defense of the case.

It’s likely that a jury will believe what the employee is claiming when balanced against your shifting reasons for discharge.  It’s also likely that the jury will conclude that you’ve acted unfairly toward the employee.

The bottom line—I’ve focused on the matter of fairness in dealing with employees, but all of the principles discussed above have just as much to do with good management.

In other words, the use of these principles is really not part of some game that allows you to out-maneuver your employees.  Rather, they represent tools to provide positive leadership in dealing with your employees while allowing you to simultaneously deal with personnel problems that arise from time to time.

They also place you in the best position to prevent–or successfully defend–an employment lawsuit.