OREGON: Lack of documentation sends employer to gender discrimination trial
An employer that terminated a female employee after she obtained a restraining order against a male coworker who she had been dating will have to defend a gender discrimination claim at trial because it couldn’t show a legitimate nondiscriminatory reason for retaining the male employee.
The employer tried to argue that it retained the male employee because he was a more skilled and valuable employee to the company, but it had no evidence or documentation to back up that assertion. Since the employer couldn’t prove that its decision to terminate the female employee wasn’t based on discriminatory motives, the court refused to throw out the case, instead sending it on for trial (Sereno-Morales v. Cascade Food, Inc., D Or, May 2011).
Tips: If you encounter this kind of situation, there may be a way to accommodate both workers, depending on scheduling flexibility, the size and geography of your workplace and the terms of the restraining order. You may also have an obligation to grant time off for an employee to seek a restraining order or take other protective measures to address domestic violence, sexual assault or stalking. See our Model Policy, “Crime Victim Leave Policies for Oregon, Washington, and California” (3912). If you decide you must terminate one employee, use nondiscriminatory criteria to select which employee must go—for example, skill level, seniority or past disciplinary history—but be sure you document how you made your decision. Your Vigilant staff representative is always available to help.