Adverse employment actions require a decision maker. Make sure you have one.
Among the first questions I ask when investigating a lawsuit accusing my client of discriminatory conduct is, “Who made the decision?” The reasons are simple. First, an adverse employment action – like termination, demotion, or failure to hire – doesn’t just happen. A person makes the decision. Second, claims of employment discrimination turn on that person’s motivations. Did the person take the adverse action because of the plaintiff’s protected characteristic ? Did that characteristic play a part in the decision? Winning or losing often comes down to how well the decisionmaker can explain the reasons for an adverse action and show that they were not a pretext for discrimination. When I have been lucky enough to be involved in the decision-making process, I counsel the employer on the importance of having a decisionmaker who will take ownership and, if necessary, be able to explain it credibly and convincingly to a jury. It’s one thing for several managers to agree that an employee ne...