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Increasing risk of liability for firing is real, as is increasing oversight of discrimination law. You can be fired on the spot for breaking company policy, or doing something illegal. Without more info, that’s what I might assume you saw. But getting fired for mildly low performance without notice is not normal, at least not among engineers in large companies, and assuming it’s not because a division or the company is being shuttered. Companies have to give people feedback and give them time to respond. Failure to do that can and sometimes does result in legal action compelling the company to prove the employee was failing and that the company did not unfairly discriminate even unknowingly, which is costly, difficult, and risky. Plus, most companies aren’t capricious with firing engineers, and are also aware that hiring is expensive and employee ROI can take time.


> result in legal action compelling the company to prove the employee was failing

The company doesn’t have to prove that the employee was failing. It’s perfectly legal for a company to fire an employee because they the employee likes the wrong football team.

The employee or people pursuing legal action on behalf of multiple employees has to prove that the company fires the employee(s) because they were a member of a protected class.

Assuming there are no incriminating emails stating that that was the reason, the only realistic way to do that is to show a pattern.

If an employee decides to sue, whether you had them on a documented performance improvement plan for 6 months or 6 days isn’t going to be the deciding factor.


> The company doesn’t have to prove that the employee was failing.

They do if the employee sues claiming age discrimination, for example. At least, they have to defend the accusation to show it’s not discrimination. When someone has been at the company for 25 years like in the parent’s example, and they get fired abruptly without notice for liking the wrong football team, it’s likely the stated reason is untrue and inviting a challenge.

> If an employee decides to sue, whether you had them on a documented performance improvement plan for 6 months or 6 days isn’t going to be the deciding factor.

It certainly helps show that the company isn’t discriminating arbitrarily, and gave the employee notice and a chance to improve the situation.

BTW actual legal action isn’t necessary for firing to be getting harder. The fear of legal action is all you need, and that is in fact going up.


>They do if the employee sues claiming age discrimination, for example. At least, they have to defend the accusation to show it’s not discrimination.

They don't have to show anything. The employee has to prove that it's age discrimination.

>When someone has been at the company for 25 years like in the parent’s example, and they get fired abruptly without notice for liking the wrong football team, it’s likely the stated reason is untrue and inviting a challenge.

Without a pattern of discrimination this isn't a problem. If there is pattern of discrimination then it is. However, if that's the case it doesn't matter how much documentation they have.

>It certainly helps show that the company isn’t discriminating arbitrarily, and gave the employee notice and a chance to improve the situation.

You can't discriminate arbitrarily. Discrimination in this context means firing someone because they are part of a protected class.

>gave the employee notice and a chance to improve the situation.

Whether you gave someone the chance to correct the situation or not isn't relevant.

>BTW actual legal action isn’t necessary for firing to be getting harder. The fear of legal action is all you need, and that is in fact going up.

The number of charges filed with the EEOC has gone down over the last 20 years https://www.eeoc.gov/statistics/charge-statistics-charges-fi...

https://www.natlawreview.com/article/eeoc-roundup-part-i-10-...

"At the same time, FY2020 saw the lowest number of charges received from workers in more than two decades. The agency received 67,448 charges—continuing the steady downward trend since 2017 in the numbers of discrimination charges filed with the EEOC."


> The number of charges filed with the EEOC has gone down over the last 20 years

Yes that’s a compelling data point for decreasing legal actions (and it’s interesting, thanks for including it), but not all actions and not all fears end up in front of the EEOC, right? This data point alone is likely due to decreasing union membership over the last 20 years, but is also explained by the increasing prevalence of mandatory arbitration clauses. What it doesn’t explain is why HR departments nationwide are increasing efforts to educate employees about anti-harassment policies. If they are legally in the clear, why is that happening? Twenty or thirty years ago it was hardly a thing, today it’s the norm.

> They don’t have to show anything. The employee has to prove that it’s age discrimination.

You are right about the legal burden of proof in court, absolutely. Court isn’t the only possible outcome of a discrimination claim, though, and the one specific example you gave is a defense against a discrimination claim that would not hold up in court (firing a long-time employee for claiming to not like the right football team).

I agree with everything you’re saying about what is required in court, and what are the legal rights for all employers in the US, not just tech companies. That’s just not exactly what I was talking about.




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