I am a general manager for a hotel and had to release an employee because she was in violation of a 8 hour minimum call in policy.  She called 10 minutes prior to her shift stating that her child was sick but not before calling about 2 hours prior to stating that she might not have a ride to work.  I gave her the option of coming into to work or be terminated.  She said that she would stay home and watch her kid.  She was also very insubordinate, loud, and unprofessional. 

I have now received a EEOC Charge stating that race (she is a black female) was the reason she was terminated.

Can anyone provide any legal defense that I can cite that would slam the door on this case as she was clearly terminated due to her violation of a 8 hour minimum call-in policy.

If you’ve got an EEOC charge in hand, it’s probably a good idea to find a local lawyer who is familiar with handling these types of cases.  Unfortunately, there isn’t an easy answer to your question…even though it may look like an open and shut case.  A qualified lawyer will be able to help you provide the necessary response to the charge (if one is being requested).

Generally, if the discipline is administered in an even handed manner and the policy has a legitimate business purpose, the EEOC charge will go nowhere. It is of course important to respond to and EEOC inquiries and cooperate in any investigation.

Here is an interesting example for the EEOC’s guidelines:

Discipline and discharge decisions are typically based on either employee misconduct or unsatisfactory work performance. Such rules and policies regarding discipline and discharge must be enforced in an evenhanded manner, without regard to race.

EXAMPLE 27
DISCIPLINE AND DISCHARGE

Monica, a Filipino sales representative, is the only person of color in her district. Monica’s job requires that she travel to the offices of clients and potential clients to market company products. Company policy requires sales representatives to be in the field from 8:30 a.m. to 5:30 p.m., and that they make sales calls on at least seven clients each and every day. Actual practice, however, is different. Most sales representatives “bank” their sales calls so that if they have a particularly productive day, they record the “extra” sales calls as occurring on a less productive day. When Monica learns that the practice is common among sales representatives, she begins to do it too, because she likes the flexibility that it offers. Things change after the company assigns a new District Manager to Monica’s district. The new manager tells Monica that “banking” sales calls is against policy and that he intends to ask the Regional Manager for permission to discipline Monica, which would deny her a bonus and make her a candidate for layoff. When Monica protests that other sales representatives in her district use the same practice, her supervisor feigns ignorance and does nothing about it. The Regional Manager approves the discipline based upon the District Manager’s recommendation. Monica files a charge alleging race discrimination. The investigation does not reveal a credible and persuasive nondiscriminatory explanation for what otherwise appears to be a racial double standard. Thus, it is likely that Monica’s discipline was racially motivated, in violation of Title VII.

Submitted by: Christopher Olmsted, Esq.

Barker Olmsted & Barnier, APLC

http://www.barkerolmsted.com