Those of you who know me and read my updates know that I am a staunch believer that HR absolutely must accurately and consistently document discipline – “If you didn’t document it, it didn’t happen.” A recent EEOC settlement is a good example of this truism.
The EEOC sued Noble House, a resort hotel in Miami because Noble House discriminated against a housekeeping employee, we will call her Ms. Smith, because of her religious beliefs. Ms. Smith’s religious beliefs prohibited her from working on her Sabbath, which was Saturday. Although Noble House accommodated Ms. Smith’s Sabbath observances by allowing her to not work on Saturdays for over ten months after she began her employment without incident, when a new supervisor came on board, he scheduled Ms. Smith to work on a Saturday. When she missed work on the first Saturday, Noble House immediately terminated her, even though it had given multiple warnings to employees who missed work due to non-religious reasons before terminating them. (We do not know what conversations occurred between Ms. Smith and her new supervisor before her absence.)
This is the key – Noble House argued that it had also given Ms. Smith multiple warnings about other, non-religious attendance issues, but it was unable to produce any documentation to back this up. Noble House did have documentation of the warnings that it gave to other employees, but it had nothing on Ms. Smith. Having documentation supporting the warnings given to other employees while having none on Ms. Smith created the appearance that Noble House had not given Ms. Smith prior warnings.
Recognizing the weakness in its defense, Noble House agreed to settle for $99,000. The settlement also required Noble House to create a number of policies and training programs dealing with religious discrimination to appoint a “religious accommodations officer” to evaluate all requests for religious accommodations and report all such requests to the EEOC for the next three years.
Bottom line – proper documentation that it had warned Ms. Smith about her attendance might have given Noble House a better chance of defending itself against this claim, or at least to negotiate a better settlement. Ideally, HR would have been involved in the decision to terminate Ms. Smith and slowed the process down when it realized that the company lacked any proof that it had previously warned Ms. Smith about the very issue for which she was about to be fired.
bswlaborandemploymentlaw.com 