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kc_excessivetardiness

Excessive Tardiness

By Jock Hoffman, CRICO

Related to: Claims, Employment Practices Liability Coverage


Description

An interpreter with attendance issues alleges he was fired due to multiple discriminations.

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Chronology of Events

A 72-year-old Black, Haitian male, who worked as an interpreter, was terminated after a lengthy history of performance issues. Over 12 years, the hospital had documented 16 instances of excessive tardiness, unscheduled absences, and other attendance-related infractions, as well as performance issues that violated protocol.

 

A month prior to his termination, the complainant received a Final Written Warning because multiple providers had complained about his performance. When a nurse witnessed the complainant spit on the floor, he was fired.

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Complaint

The interpreter filed a complaint with Massachusetts Commission Against Discrimination (MCAD) alleging that he was fired for reasons related to his age, race, color, and national origin.

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Disposition

The complainant could not provide any evidence that any other employee had been disciplined differently for similar behavior (i.e., no one was treated “more fairly”). Citing the hospital’s documentation, the MCAD agreed that the evidence supported the hospital’s proffered reason for the termination (poor performance) and that the complainant provided insufficient evidence of a discriminatory pretext.

 

The Massachusetts Commission Against Discrimination (MCAD) issued a lack of probable cause (LOPC) ruling after the hospital was able to produce documents demonstrating the complainant’s lengthy history of performance issues (and its prescribed corrective actions).

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Discussion Points

  1. What steps must an employer take in response to an employee’s persistent performance issues that demonstrate good faith and good management?
  2. What is the significance in this case of consistently applied discipline?

Learn more about Employment Practices Liability

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May 19, 2022
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