Avoid Litigation: Separate Performance from Protected Status and Separate by Agreement


It is no surprise that a problem employee’s performance issues are not the sole source of angst for an employer. Sometimes that problem employee seeks to protect their deficient performance by filing claims for a host of other issues that give the errant employee protected status. Perhaps they claim to be harassed by other employees or their supervisor. Perhaps they have claims that include unpaid wages, loss of breaks, loss of lunch periods, discrimination based on their protected status as a person of color, age over 40, gender or sexual preference. Believe it or not, a person can be subjected to unlawful practices and also be a terrible employee. By failing to fully investigate and deal with the protected status claims, whether intentional or not, you may subject your organization to litigation when you fire the employee for poor performance. Keep protected status and poor performance separate by dealing with both squarely and straightforwardly. Most importantly, deal with both.


The first step toward holding employees accountable for poor performance is to have written job descriptions that delineate the “Essential Functions” and performance standards. The essential functions are those duties that an employee must be able to do, with or without a reasonable accommodation, or they will not be able to continue in that job. A reasonable accommodation is defined by the EEOC and most state bureaus of labor on their websites. Regularly review job descriptions to insure that they reflect your expectations for the work the employee is doing. In any wrongful termination or discriminatory termination claim, that job description is going to get attention.

Performance standards are usually organized on what is referred to as a Likert Scale. A score of 0 or 1 means unsatisfactory or unacceptable performance, a 3 means “meeting expectations,” and a 5 means “Exceeding Expectations.” Most also require a “program of improvement” (POI) or ”program of assistance” when an employee is substandard. Many employers who have such policies never get around to doing the POI or POA which creates ammunition for the lawsuit. When employers actually develop a written POI or POA and demonstrate a real attempt to help the employee improve their performance, the employer is rarely sued. The POI/POA is evidence of a sincere effort to deal with substandard performance. When an employer invests in the employee’s improved performance, it is evidence that they were not just looking for a way to retaliate against or wrongfully terminate the subpar employee.


Benjamin Franklin said, “Take time for all things: great haste makes great waste.” Ben should have been an Human Resources Director. Make sure that when a termination decision is going to be made that all available evidence of performance and related work issues are thoroughly examined. I have represented employers and employees in termination matters. I know of at least two terminated employees, to whom their attorneys remarked that they would have fired them as well, but for the right reason The difference is that had the employer focused on performance issues they could have done it right. In these circumstances they were poor performing employees, but also in both situations, the supervisor saw an opportunity to fire the employee quickly for insubordination and tried to take the easy way out.

In the first case, the employee was an on call worker who wouldn’t work Sundays. In the other case the employee was missing work, and leaving right at five when the supervisor asked the employee to stay to talk about potential discipline. Neither case went to trial but both cases cost the employer a good deal of money in attorney fees and settlement costs. Had someone from the company investigated more carefully, they would have discovered the first employee had requested religious accommodation multiple times, but the employee’s supervisor wasn’t aware of the employer’s duty to reasonably accommodate religious practices. The supervisor saw it as an opportunity for a quick discharge of a poor performing employee. The second case is also insightful. Had someone from the company investigated, they would have discovered the missed time was to care for a severely disabled family member. The supervisor saw the missing work, leaving early or on time instead of staying after as insubordination, when in truth the employee was the sole care provider and medical power of attorney for the family member. Don’t skip steps, if you have a progressive discipline system proceed systematically unless it is really an unusual situation. While there are exceptions, in the heat of the moment people tend to see everything as a valid exception. In the cool candor of the courtroom it will not be so obvious.

In both of the above situations the result could have been different for the employer. Had the employer followed through with its established performance standards and progressive discipline, and avoided terminating the employees for anything remotely related to a protected status issues, the employer likely would not have wound up in court. Had the employer been more purposeful and deliberative in its actions, the employer would not have been sued, and would not have had to spend valuable resources on attorneys, discovery and settlement. It would have helped as well if HR would have reviewed all of the peripheral issues circulating around the poor performing employees as well. As an employment attorney, I always advise my clients to move slowly and systematically when reviewing the reasons for terminating an employee. Look for the reason the supervisor is saying they want to terminate the employee and also the reasons they are not giving. Do your best to separate protected status issues from your reasons for termination. The best practice is to make a list of protected status issues and go through that checklist in any situation that involves terminating an employee to find out if there are any peripheral issues that must be handled before termination proceeds.


I’ve practiced employment law in Oregon and California. They are both “at-will employment” states: meaning, either the employer or the employee can terminate their employment at any time for any reason or no reason, provided it doesn’t violate public policy or the law. This means as an employer you can terminate an employee at any time for any reason. Or does it? Technically it does, realistically not so much. Using an at-will employment to not give a reason and terminates an employee when the employer knows the employee has a protected status issue, invites litigation. At-will terminations are not an easy route to terminate employees that are presenting protected status or engaging in protected activity. When a poor performing employee also has protected status, meaning they fall into a category of employees that have special protection under the law, I often advise my clients to forget “at-will” employment and look for a legitimate performance issue that is unrelated to the protected status. I routinely advise clients to provide “due process” and to state a “cause” for termination. This doesn’t equate necessarily to the “just cause” of public sector contracts or union contracts, rather it means: identify a performance standard the employee is not meeting and focus on that. As I said earlier, if you have a progressive discipline, use it and don’t skip any steps.


If you know the termination of a poor performing employee is tainted by protected status claims, do not ignore the protected status claims. Address the issues while dealing with the poor performance as well. We have a saying in Human Resource Management, “If it isn’t written down, it didn’t happen!” It is a great rule to live by. Document what you are doing to engage a protected status employee with the issues they are raising. If they complain they are being harassed: engage an independent investigator to interview, investigate and produce a report. If there are violations, take action giving warnings, reprimands, suspensions or, when necessary, terminate. Document everything you do to address the concerns raised by the protected status employee.

At the same time, document what proactive steps you are taking to improve the employee’s performance. For example: Employee X, who claims harassment by coworkers, is also late for work 2-3 times per week. In addition, have the harassment investigated by someone other than the supervisor and meet with the employee to discuss the employee’s tardiness. A prudent supervisor might approach the conversation like this:

Scenario One:

Supervisor, “George, you are a valued employee and we need you here working your full shift. Is there something happening in your life that causes you to be late 2-3 times per week?”
George, “I’ve just been really tired and have a hard time getting up. My alarm hasn’t been going off.”
Supervisor, “I understand, how about I provide you with a new alarm clock with a battery backup (under $15.00).
George, “No, I will take care of it.”

Scenario Two:

Supervisor , “George, you are a valued employee and we need you here working your full shift. Is there something happening in your life that causes you to be late 2-3 times per week? Is there anything else I should be aware of that would excuse your tardiness?”
George, “My wife is having breast cancer treatments and I have to get the kids on the bus in the morning because she can’t get around.”
Supervisor, “Wow, George I’m so sorry to hear that. You know you are entitled to Family Medical Leave for your wife’s serious health condition. I’m going to have HR contact you to get you the forms to fill out, then we can look at ways to accommodate your need to flex your schedule.”

In scenario one, the supervisor is documenting the supervisors willingness to assist the employee with a problem area of performance. The supervisor is also providing the employee with the opportunity to raise any protected status issues which will be useful later if the employee sues for protected status claims. The supervisor will be able to show that they sought information to explain lack of performance from the employee. In the second scenario, the supervisor could have just written the employee up for missing work, but by sitting down with the employee and asking for an explanation, the supervisor is alerted to protected status claims for Family Medical Leave.


Performance relates to doing the duties and tasks described in the job description. Performance evaluations are an assessment of the employee’s actual achievement in meeting those expectations outlined in the job description. Discipline on the other hand relates to violations of work rules. Performance is measured on evaluation forms indicating whether the employee is meeting expectations. If an employee has demonstrated that they are unable to meet the performance standards by any objective or even a subjective standard, the employer may terminate their employment for lack of performance. Recording the employee’s failure to perform on evaluation forms is a good practice that I encourage my clients to use. You might ask, “If I have at-will employment, why bother?” If your decisions is attacked through the Bureau of Labor or a lawsuit as pretext for wrongful termination you will have evidence of why you made the decision that is not discriminatory. The more reasonable the employer’s approach to dealing with poor performing employees, the less likely the employee is to litigate, or at least it decreases the odds a plaintiff attorney will take on the case.

When an employee breaks a work rule I recommend that employers use a systematic approach to dealing with the behavior. Progressive discipline is a stair step approach that usually includes: oral warning, written discipline, suspension and termination. Again, I am often asked, “Well if I have at-will employees why bother with progressive discipline?” It is those instant decisions in the heat of work conflict that most often get employers into trouble. As we discussed previously and employee who is late to work, or is missing work. If you ASSUME it is just another work rule violation, you may find yourself on the losing end. Sitting the employee down and politely asking for an explanation will give you all the information you need to make the right decision. That small element of due process, giving them the opportunity to respond to potential charges, is a defense to the charge that you were discriminating. If the employee gives a protected status reason for the absence, require them to follow protocol to request proper leave. Warn them about the need to keep you informed and to follow protocol. After the meeting, send them a note thanking them for the meeting and the explanation and for their promise to follow policy in the future. Keep a copy for your file and you have met the first element of progressive discipline: warning. If they didn’t give you a protected status reason for the absence the next time it occurs, you can meet with them and ask for an explanation. If the explanation is unsatisfactory, then inform them you are going to write them a reprimand. In the written reprimand, restate the substance of your discussion, an expectation that they follow the work rule and finally notify them that future failures will result in further discipline up to and including potential discharge. When or if it happens a third time, meet with them again and ask for an explanation. If the explanation is unsatisfactory and for other than a protected status issue, inform them you are going to be suspending them without pay for 1-3 days. Write an additional reprimand with suspension following the same formula as for a reprimand, but list the 1-3 days you are putting them off work without pay. Finally, if the violation occurs again, have a meeting with the employee and let them explain. If the employee’s answer doesn’t incorporate a protected status reason, let them know that you have decided to terminate their employment and when.


Employers rarely get into trouble by taking the time to investigate all of the issues surrounding an employee’s poor performance and a supervisor’s recommended termination of an employee. Searching out the lurking protected status issues such as Family Medical Leave, Pregnancy Disability, Americans With Disability, Discrimination, Harassment, and Hostile Work Environment before the termination of an employee may save the employer tens of thousands of dollars. There are things that go bump in the night and what you don’t know can hurt you.

When there is a question of potential protected status claims, consider a written separation agreement. The employer provides two or more weeks of pay in the form of severance in consideration of a signed settlement and waiver of all potential issues the employee may raise at a later date. I recommend separation agreements for my clients as a course of business for separating employees. The separation agreement is an insurance policy against litigation, i.e., two additional weeks of salary verses the potential of two to five years of litigation. It really isn’t a bad investment for the employer’s peace of mind.


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