It is also important to ask a few questions that may not appear to have legal implications but are nonetheless important, particularly when a jury ends up deciding whether the employee was unlawfully discharged. This should be considered before the discharge occurs because if you replace an older employee, for example, with someone who is considerably younger or an African-American with a white employee or a female employee with a male employee or a disabled employee with a nondisabled employee, you create evidence that will be used against you. On the other hand, if you replace an employee in a protected class with another employee who is in the same protected class, it will be difficult for the employee to successfully contend that you discriminated against him or her. The simple truth is that a long-term employee is afforded considerable sympathy by a jury. Thus, the longer an employee is with you, the more dangerous the termination becomes.
Consistency is very important when it comes to the art of firing.
If the answers to these questions indicate a dangerous termination, legal advice should be sought before going forward. Once you decide to go ahead, the termination conference itself becomes important. In order to handle this termination conference properly, you should follow several guidelines. Two employer representatives should be present. Get to the purpose of the conference quickly.