Daniel J. Green, an Associate in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Bloomberg BNA, in “Fairness, Honesty Help Employers Avert Liability in Firings,” by Martin Berman-Gorvine.
Following is an excerpt:
Discrimination claims rest on an argument that someone was treated unfairly due to his or her protected characteristics. To avoid this, Daniel J. Green, an associate with Epstein Becker Green, suggested asking, “Have other employees who engaged in similar misconduct been terminated for cause?”
“If not, there may be concerns about disparate treatment,” he told Bloomberg BNA in an April 26 email. Moreover, he said, the fired employee in such a case “will have a good contractual argument that his/her conduct did not constitute cause.”
Employers should also ask if the employee has “recently engaged in whistle-blowing, alleged he/she was sexually harassed, taken a protected disability or other type of leave of absence, or engaged in other protected activity which could give rise to a retaliation claim,” Green said.