The Need to Maintain the Proper Tone Regarding Actions Taken

The final important area in litigation prevention advice is the matter of tone. Management attorneys stress the importance not only of what is said to employees, but also the pitch at which it is conveyed. As one lawyer notes regarding equal opportunity policies generally:

When your employee brings a discrimination or harassment com- plaint to a government agency, one of the first things that an in- vestigator will do is review your company’s EEO policy. A policy with well-constructed content and tone will create a favorable first impression. If the content and tone don’t pass muster, you may be in for trouble.286

A similar concern for tone is evident in discussions concerning performance evaluation preparation. Defense lawyers note the im-

281. See Martin, supra note 124, at 873-74; Turk, supra note 200, at 106 (noting regular performance reviews should be conducted so “employers will not be tempted . . . to create last-minute performance reviews . . . that may be viewed as pretext for terminating the em- ployee on other grounds”).

282. Baxter & Klein, supra note 182, at S1. 283. Seesupra notes 253-71 and accompanying text.

284. Recall that one defense recommendation is that performance evaluations be re- viewed and, if necessary, edited. Seesupra notes 229-35 and accompanying text.

285. See Edelman et al., supra note 78, at 530. 286. Segal, supra note 113, at 109.

portance of candor when recording the employee’s weaknesses in these reviews.287 _{Yet in expressing candor, the attorneys warn evalu-}

ators not to be overzealous.288 _{As one advocate notes, “petty and in-}

consequential evaluations can taint an employer’s position.”289

Another situation where pitch is considered vital is the area of discipline and discharge. Attorneys counsel supervisors to “avoid emotional responses to personnel problems.”290 _{These suggestions il-}

lustrate the appropriate tonal parameters of a termination meeting: “Employers should state reasons consistent with the documentation in its [sic] files; should be direct, honest, and firm; should avoid ar- gument; should not sugarcoat the real reasons for termination; should be humane; but should not be apologetic.”291 _{Following such}

an approach can help the employer demonstrate that it acted fairly under the circumstances.292

No doubt bad news delivered sensitively is a gain for employees. A poor performance review, discipline, and discharge are all traumatic occurrences. By achieving the proper tone, an employer can help the employee face the inevitable with equanimity.

Nonetheless, might there be ways that a fair sounding adverse ac- tion could mask discriminatory conditions? One management lawyer may provide an answer:

287. See Fitzpatrick, supra note 199, at 699 (“Be accurate and candid.”); Hermle, supra

note 209, at 403 (bemoaning the fact that “[m]anagers are more often than not less candid in performance reviews than they could be”); Baxter & Klein, supra note 182, at S1 (“It is essential for employers to stress to supervisors the expectation and need for candid per- formance evaluations.”); Hicks & Alexander, supra note 196, at *12 (advising that employ- ers “honestly” and “accurately” evaluate employee conduct); Martin, supra note 209, at 7 (“[T]he firm should also remind evaluators of the importance of giving candid assess- ments.”); Ruffino, supra note 113, at 9 (“[S]tress to managers the importance of giving hon- est review . . . .”); Sanchez, supra note 201, at 27 (“Performance reviews should be honest.”).

288. See KAHN ET AL., supra note 112, at 6-15 (“Negative over documentation of one employee can support a finding of intentional discrimination.”); Hicks & Alexander, supra

note 196, at *13 (“Evaluators should . . . avoid insulting, defamatory or inflammatory lan- guage.”).

289. BLOCK ET AL., supra note 199, at 58; see also Gay et al., supra note 262, at 52-53 (“[A]void presenting a ‘laundry list’ of reasons for an employee’s termination or other ad- verse employment action. The more reasons an employer gives, the more opportunity a plaintiff has to create an issue of fact.”); Martin, supra note 124, at 874 (“Assuming there is a relatively complete written record of plaintiff’s performance, the best strategy . . . is gen- erally to admit plaintiff has the strengths documented and to stress the deficiencies noted in the documents and explain why those deficiencies are significant.”); Segal, supra note 113, at 109 (“[I]f the comments are too specific, it may appear that the employer is ‘nickel and diming’ the employee in the hope of driving the employee from the organization.”).

290. Paskoff, supra note 164, at 5; see also Sanchez, supra note 201, at 27 (“The disci- pline should always be given privately and not in anger.”).

291. Fitzpatrick, supra note 199, at 703; see also Cathcart & Vanderziel, supra note 204, at 1240 (instructing employers in reduction-in-force contexts to “[c]ommunicate the decision humanely”).

292. See Fitzpatrick, supra note 199, at 703; see also Paskoff, supra note 164, at 5 (“[I]f litigation does arise, by following this rule, the employer can better demonstrate fair treat- ment.”).

An ugly termination may come back to haunt your company. Treat all terminated employees—even those who were terminated for cause—with respect. . . . [D]on’t humiliate the employee. And al- ways spell out precisely why he or she is being terminated. Re- member, the employee who’s been humiliated is the one who’s most likely to sue.293

If one accepts the idea that managers may fail to discern condi- tions of inequality in the workplace because they view disputes as personality clashes rather than potential instances of discrimina- tion,294 _{the problem becomes clear. An employer deserving of a law-}

suit may avoid litigation by treating an employee nicely. In other words, this type of compliance mechanism may encourage employees not to take legal action where there may be grounds for it.295

This argument may make sense in the context of termination meetings. Yet, can achieving the proper tone in one’s documentation forestall a worthy lawsuit? I do not doubt that it can. As the attorney quoted above notes, “[I]f the employee knows you’ve got good docu- mentation, there’s less incentive to launch a suit.”296 _Furthermore,

even if the employee decides to seek legal counsel, “[a] fully docu- mented personnel file may discourage a former employee’s attorney from filing prospective litigation.”297