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Documentation and Discrimination

We’ve all heard the real estate agent’s mantra, “location, location, location.” Human resource professionals and employment attorneys have a similar mantra, “documentation, documentation, documentation.” Why is documentation important for employers? Numerous discrimination lawsuits demonstrate the reason.

In the case of Brockman v. Avaya Inc, a federal trial court allowed a discrimination claim to be determined by a jury because the employer’s documentation for firing a pregnant employee was deemed inadequate. According to court documents, Ashley Brockman was terminated from her managerial position at Avaya, Inc. (a computer consulting company) after disclosing to her supervisor that she was pregnant. Brockman claimed that she was terminated because of her pregnancy. The company claimed she was terminated because of her lackluster performance and that the decision to fire her was made three days before Brockman learned that she was pregnant. However, court records state that the company’s defense that the employee was terminated because of poor performance was found lacking because:

  • No written documentation supported the claim that Brockman’s supervisor intended to terminate her before she disclosed her pregnancy to him;
  • Brockman’s supervisor claimed to have written and then lost an official document outlining his reasons for terminating her;
  • Brockman’s supervisor failed to document any coaching sessions he allegedly provided her, which violated company policy; and,
  • Brockman’s personnel file, which should have been in her supervisor’s possession, was missing.

Lesson learned: employers and supervisors should document performance problems and conversations with employees regarding those problems. An absence of documentation (or shoddy documentation) poses legal risks for employers.

In the case of Vaughn v. Edel, favorable evaluations of an employee who did not deserve them led to a lawsuit. According to a summary of the case on, employee Emma Vaughn received favorable performance evaluations, merit increases, and no criticism of her work performance before being terminated by Texaco, her employer. Texaco management stated that Vaughn was terminated for poor performance, even though its documentation demonstrated otherwise. In its defense, Texaco management stated that they refrained from confronting Vaughn about her poor performance because she was black. Ironically, “this direct evidence clearly shows that (her supervisor) acted as he did solely because Vaughn is black… Vaughn has, consequently, established that Texaco discriminated against her,” reported

Lesson learned: no good deed goes unpunished. Employers and supervisors should be truthful in their evaluations of employees and their documentation should reflect this honesty.

Documentation is helpful for employees as well as employers. Documentation and discussions with employees concerning the incidents being documented helps employees know what’s expected of them and when they are not meeting expectations. In her article “The Case for Documenting Performance Issues” on, consultant Barrie Gross emphasizes that, “Discussions about performance along the way are critical to the employee’s success.”

Of course, documenting those discussions will help protect employers if an employee is terminated for failure to meet expectations. For example, in the case of Coleman v. Blockbuster, Inc., employee Tyra Coleman was unsuccessful in her discrimination suit against Blockbuster because the company was able to demonstrate through its documentation that Coleman was fired for poor performance. According to an article on the case on, Coleman received two “Corrective Action Reports” (CARs) for her store’s poor performance. She received a third CAR for missing a mandatory meeting that stated “Failure to improve will result in termination of employment.” Shortly thereafter, Coleman closed her store early and left the premises because of a medical emergency with her son. After being terminated, she filed suit for racial discrimination. The court that heard the case found that “Blockbuster came forward with solid evidence to demonstrate that the reason for Coleman’s termination was dereliction of duty” and ruled in the company’s favor.

Lesson learned: just as the location of a business can increase its success, documentation of the poor performance of its employees can protect its assets.

Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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