When telling a problematic employee that he has been terminated, an employer is sometimes reluctant to share the real reason – or all the reasons – for the termination.  Instead, the employer might pick the explanation that seems the simplest and least subjective – like a position elimination or reduction in force – in order to spare the employee’s feelings or to avoid a more uncomfortable discussion about performance issues.  Taking this “easy” path, however, can lead to trouble for the employer if the employee ends up bringing a discrimination claim based on the termination.  This was the situation in the recent federal case of Tomlinson v. Wiggins.

In this case, an employee had been diagnosed with depression and had requested certain accommodations for his condition.  This employee had performance issues, including failure to comply with his supervisor’s direct instructions and failure to execute certain major job responsibilities.  His supervisor recommended that the employee be terminated because of these performance issues and Human Resources agreed.  In the termination meeting, however, the employee was told that his job was being eliminated through no fault of his own.  The employee subsequently sued under the Americans with Disabilities Act for failure to accommodate his depression and retaliation, in addition to asserting other claims under Family and Medical Leave Act and the state anti-discrimination law.  In defending against the lawsuit, the employer argued that the termination was actually based on significant performance deficiencies.

Unfortunately for the employer, the Court found that the employer’s “shifting explanation” as to the reason for the termination could be evidence that the real reason was disability discrimination – that it was certainly possible the HR director did not want to continue to deal with the accommodation issues associated with the employee’s depression.

What does this mean to employers?  The lesson is honesty is the best policy.  When terminating an employee, it is better to let them know 1) all the reasons for the termination, if there are more than one, and 2) the actual reasons for the termination (assuming they are valid reasons – if they are not, you shouldn’t be terminating the employee!).  This doesn’t mean that an employer needs to go into excruciating detail about the performance issues or engage in an argument with the employee about those issues.  It is best, however, to be factual, be concrete, and above all, be truthful.