It’s been said many times but bears repetition: employers must be careful what they put in e-mails, even routine office communications.
Melanie McClure brings us another real world example in her Arkansas Employment Law blog.
A bank had a young female teller. She had documented performance problems. While employed, she became pregnant, and suffered some physical symptoms, which the bank accommodated.
Nonetheless, her performance problems continued, and her supervisor sent an e-mail to HR asking that the "pregnant girl teller" be fired. Not smart. To a plaintiff’s lawyer that kind of statement is like manna falling from heaven.
This case had a happy ending for the bank. The discharge of the "young girl teller" was found to be performance-based and non-discriminatory. But getting to that point doubtless cost a lot in both time and money.
Melanie McClure suggests that "avoiding litigation is more important than winning litigation." That statement is a little broad for my taste, but her main point is well taken. There is a real virtue in avoiding litigation when it’s avoidable. Here it probably was avoidable. If that e-mail had been phrased differently, there’s a good chance that the litigation never would have happened. Perhaps something like this: "Please terminate Jane Doe due to her performance problems." But referring to her as "the pregnant girl teller" was just asking for trouble.
Most employment lawyers have stories like this, which suggests that we need to continue to educate our clients about the dangers of the too-casual use of e-mail.