How to fire anyone without legal repercussions

Once, a distant relative confided in me that she didn’t have to worry about her performance at work anymore because she was in her 60s, and any punishment would be considered age discrimination.

Does anyone want to guess what happened to that relative?

If you want to guess that she was offered early retirement in lieu of termination for poor performance, you’d be right. (She accepted it and did not sue because she had no case.)

People worry about disciplining or laying off people in “protected classes” because they don’t want to be sued.

Well, I don’t want you to be sued either. So, I’ll walk you through the Evil HR Lady’s guide to firing anyone – even my relative.

Understanding ‘protected classes’

Often, people think protected classes consist of women, minorities, LGBTQ+ people, people over 40, the pregnant, and the disabled. But that’s wrong. Everyone on the planet is in a protected class.

This term means that you can’t terminate or punish someone because of their gender, race, gender identity, pregnancy status, disability status, or other protected characteristics. The only group you can (from a federal perspective, but not in every state) are people under 40.

You can’t terminate someone because they are White any more than you can terminate someone because they are Black. And even when people say, “But I’m in an at-will state!” that doesn’t make much difference. First, every state but Montana is at-will.

Second, at-will means you can terminate for any reason or no reason as long as that reason isn’t illegal.

Read that again. As long as that reason isn’t illegal.

Courts have already caught on to this “one great trick for being a racist” where you fire someone because of their race but say, “Hey, it’s at-will, so I just felt like terminating someone, and Jane walked in first!”

They know that’s not true. Courts call this “pretext,” and it gets you in big legal trouble.

But isn’t a minority/LGBTQ+/Pregnant/older person more likely to sue?

Sure – because it’s more likely that you will discriminate on that basis. Plenty of people believe that there are people who are protected and people who are not, so there are people who won’t do anything because they think there is no way they can win.

But, you should not have anyone in a position where they think you terminated them for a protected reason. And it’s not hard to do. It just requires that you do your job and follow best practices.

Here’s how you can fire literally anyone.

How to fire anyone

1. Don’t be a racist/sexist/whateverist

This is the easiest part. If you judge people based on their immutable characteristics, get yourself to therapy to understand what is wrong with you and fix it.

2. Document everything

This is more than documenting when someone does something terrible; you must also note when someone does something good. Why? You need evidence that this person was poorly behaved and that other similarly situated employees were not poorly behaved.

3. Use performance improvement plans and progressive discipline

These provide solid documentatio showing you’ve let the employees not only know precisely what the problem is – but also that you’ve given them ample opportunities to improve.

4. Be consistent

If you write up one employee for being late, you need to write up all employees who are late. If you let one employee print her wedding invitations on the company equipment, you must let all employees print their personal stuff on the company equipment.

5. Conduct neutral investigations

Whether you need to investigate a claim of racial harassment or supply theft, approach it from a position of neutrality. If the alleged perpetrator has authority over the person conducting the investigation, hire an outside person to conduct the investigation.

If you do these steps, and you want to terminate someone for poor performance, a general layoff, or because of rule-breaking, you’ll be set to go. When someone has been on a PIP for 90 days, and you have documentation that they haven’t reached the goals, it’s pretty airtight to terminate them.

When you’re conducting a layoff and have to choose one person from a group to terminate, having years of employee evaluations demonstrating that this person performed at a lower level than their coworkers, you can feel pretty confident.

The court doesn’t require you to be perfect in how you terminate. You just have to act in good faith. These things will satisfy the good faith requirement.

How did the boss fire my 60+-year-old relative?

Naturally, the boss didn’t allow me to see any of the paperwork, but my relative had bragged to me about being untouchable and told me her side of the story.

The boss documented the number of times my relative came in late, left early, and called out ‘just because.’

The boss encouraged the relative to go to the doctor and get an ADA accommodation if needed because the relative complained she was late due to health problems. My relative refused to do that, even after the boss encouraged it.

The boss put my relative on a PIP with clear guidelines for improvement, which my relative should have taken seriously. She did not.

No one is untouchable. At least, no one should be.