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  • Writer's picturePavan Khoobchandani

"I Was Just Kidding!" Documentation Of So-Called Jokes At Work Forestalls Discrimination Claim

Updated: Nov 23, 2019

Workdays can be long and grueling. An employee that makes hilarious jokes at work and helps the mid-afternoon slump is everyone's best friend, right? Check out the kinds of jokes that an employee that worked for a TV news network in a recent case out of Virginia made:

  • After she was reprimanded for calling a coworker an a**hole, she said her statement was "just a joke."

  • After she bypassed the broadcast director and spoke directly with the anchor of the news program over an intercom, which she was not allowed to do, she said she "was only joking with the anchor" and that the director was unprofessional for telling her she violated protocol.

  • She played a video game on a personal device loud enough to be heard outside of the video room (who doesn't love video games?).

  • She "jokingly" told a coworker that she would kill him.

After she was terminated in part due to her hilarity, the employee filed a lawsuit against her former employer, alleging discrimination on the basis of religion, sex, age, and disability. The employer filed for summary judgment, asking the court to dismiss the case as a matter of law. The court performed a very detailed analysis of the employee's claims and, more importantly, the company's defenses, which included documentation that the employee had been repeatedly reminded of protocols and was reprimanded when she didn't follow the protocols a second time, that her initial 30-day review and her first performance evaluation stated that her performance needed improvement, and that she was placed on a performance improvement plan prior to her termination.

The court found that the employer had acted properly and that any allegations that there was discrimination were unfounded, noting:

Defendant has articulated legitimate reasons for Plaintiff's termination: Plaintiff's poor performance and repeated engagement in inappropriate, unprofessional conduct. An employee's substandard performance and unprofessional behavior are a legitimate, non-discriminatory reason for discipline and termination.

The court didn't base its decision solely on deposition testimony from the HR director or the employee's supervisor. It relied on actual documents produced by the company to support its reasoning, beginning on the employee's first review and extending throughout the course of her employment.

What's the takeaway for employers?

Proper documentation of an employee's performance is going to help every time. When an employee joins your company, the last thing you may want to do is be negative at the outset, such as at a 30-day review. But being honest with your employee doesn't necessarily mean that you have to be mean. There are ways to communicate (and document) sub-standard job performance that are framed to help the employee succeed. If you can get into the habit of being honest with your employees, you'll help protect your company in the event of litigation.


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