2. You were instructed by your supervisor to terminate an employee due to slow output of work. You just completed a class on employment law and know that in Pennsylvania you can terminate someone...

2. You were instructed by your supervisor to terminate an employee due to slow output of work. You just completed a class on employment law and know that in Pennsylvania you can terminate someone for no reason—the “Employment at Will” doctrine. However, you want to make sure that you are not accused of discrimination in this case. What factors would you consider reviewing in this case prior to terminating the employee in order to help assure that you are not being discriminatory and do not appear to be discriminatory? How would you evaluate these factors? The discrimination factors must be covered under a law, so you will need to make assumptions (and state them) as to the type of factors that should be examined in order to answer this question.

Expert Answers
teachsuccess eNotes educator| Certified Educator

To assure that you are not discriminating, you might consider reviewing federal and state (Pennsylvania) discrimination laws. 

At-will employees who wish to challenge their termination may rely on certain statutes to argue their case, such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, Title I and Title V of the Americans with Disabilities Act of 1990, the Civil Rights Act of 1991, and the Pennsylvania Human Relations Act. 

You mentioned that the employee will be terminated due to "slow output of work." To address any concerns about discrimination, it would be wise to consider whether the employee belongs to any of the protected classes (under federal and Pennsylvania employment law). Is the employee disabled, over 40, a woman, a member of the LGBTQ community, or a minority?

Can the employee claim that a "hostile work environment" has led to his/her "slow output of work"? For example, can the employee argue that his/her transgender status has led to bullying from certain coworkers, thereby reducing his/her capacity to perform at an optimal level? Has the employee made claims of sexual harassment? If the employee has already made such claims, were internal investigations conducted to ascertain the validity of his/her claims?

Another factor to consider is whether there has been a paper trail documenting prior performance lapses by the employee. Without precise evidence documenting prior performance issues, an employee may successfully challenge his/her termination in court. It is wise to have clear, irrefutable evidence to support your reasons for terminating the employee.

Another factor to consider is whether the employee can claim to be a victim of "illegal retaliation." For example, has the employee recently filed for reasonable accommodations under the Americans With Disabilities Act? Has the employee recently reported that one or more of your company's policies are illegal or a violation of federal law? Employees who act as whistleblowers are protected under the Whistleblower Protection Act of 1989 (for private sector employees), the Civil Service Reform Act of 1978 (for federal employees), and the No Fear Act of 2002 (for federal employees). Additionally, Pennsylvania public employees are protected under the 1986 Pennsylvania Whistleblower Law.

You may be able to review the above factors by conducting your own internal investigations and by carefully examining the employee's HR records.

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