Sound bites can hurt

We live in a digital world of sound bites.  You can watch any news program today and be presented or even overwhelmed with sound bites from a media event conducted just yesterday, last month or even 10 years ago.  This similarly presents risk management concerns for your business.

What is a “sound bite?”  In the legal world this is called “direct evidence.”  Direct evidence is evidence, which if believed, proves the existence of a fact without inference or presumption.  Examples would include direct observation – “I saw . . . ”.   It would also include examples such as, “I heard . . ., or “John Doe wrote . . .” .    What does this mean for you?  Comments or writings made by supervisory staff can have significant negative legal consequences for you.

Here is a fresh off the presses case in point (Stewart v. Wells Fargo Bank, 5:15-cv-00988-MHH (3/14/17 Northern District of Alabama).  A Wells Fargo employee, Deborah Stewart, was hired as a treasury management sales consultant.  She was hired with considerable experience but got off to a slow start.  As time progressed Ms. Stewart continued to meet her benchmark standards as was first issued an informal performance warning followed with a formal one.  A week before receiving her formal performance warning she visited her doctor and learned that she needed neck surgery.  She requested FMLA medical leave which was granted.

After 5 weeks Ms. Stewart returned to work with limited duties for an additional two weeks.  Her supervisor wished to follow-up on her termination because there just wasn’t a path for success.  He sent an e-mail to HR listing multiple bases for termination including the comment, “Debbie submits a request for medical leave.”  Debbie was terminated and replaced with a junior person without Debbie’s level of experience.

A lawsuit for retaliation under FMLA followed.  Wells Fargo sought to have the case dismissed before trial on the basis that Ms. Stewart had well documented performance issues and that her poor performance was the basis for the termination.  The court didn’t buy what Wells Fargo was selling.  That one sound bite provided direct evidence of a discriminatory or retaliatory attitude sufficient to present the case to a jury.

This is why all new supervisors should receive EEO legal training.  Ignorance of the law is bliss – until it bites you.

©Richard Birdsall, J.D. is a Senior Associate at The Growth Company, Inc. You can follow him on LinkedIn and Twitter. For more information on reference checks and/or background investigations contact Richard Birdsall at Rick@thegrowthcompany.com or 907-276-4769.

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