One of the primary reasons I started this blog was to help employers learn from others' mistakes. It struck me in listening to the media coverage about Shirley Sherrod that the administration has given employers a great example of how not to go about firing someone. No matter what your political affiliation, every employer can learn from the mistakes the Obama Administration made.
Of course, I'm only going on what I read or heard from the news media. Some facts are debated (but I won't let a few debated facts stand in the way of good lesson). Sherrod, of course, was the Agriculture Department official who was summarily fired when the Administration learned, presumably through the news media, that she had given a speech in which she admitted to discriminating against a white farmer. As the story goes, the video of Sherrod's speech had been selectively edited to make her remarks appear more damning than they actually were. Sherrod's entire speech showed she was not, in fact, biased but was relaying a story about overcoming bias.
First, as I understand it, Sherrod was fired without being given any opportunity to tell her side of the story. She claims she was driving when she got a call from a deputy secretary in her department who told her he need her immediate resignation. She then had to pull over the car and type her resignation letter into her Blackberry. While there are times when an employer need not hear the employee's side of the story, those times are exceptionally rare. The far better course, as I explained a while back, is to listen to the employee's version of events before making a decision.
Second, it seems reasonably clear that senior officials in the Agriculture Department decided to fire Sherrod without conducting any investigation, much less a meaningful one. Sherrod maintains (as any employee would) that she told her supervisors to listen to the entire speech she gave but they ignored her. The lesson here is, of course, that before an employer fires an employee (especially for misconduct), the employer should conduct a pretty extensive investigation. Knee jerk reactions, as I have explained, are likely to cause legal problems for employers.
Third, the Agriculture Department is in the midst of a lawsuit brought by African American farmers who alleged that they suffered racial discrimination in USDA farm loan programs. According to the Congressional Research Service, the suit alleges that the USDA had discriminated against black farmers from 1983 to 1997 when they applied for federal financial help and again by failing to investigate allegations of discrimination. One of Sherrod's contentions has been that the participants in this pattern of discriminatory conduct were never discipline for it but that she was fired for only one "offense." Let's suppose, for the moment, that this is true and that Sherrod had confessed to inappropriate conduct toward white farmers. In meeting out discipline for misconduct, employers should always consider whether the current discipline is consistent with past discipline.
The interesting question this poses, however, is what does an employer do when it wants to change course and no longer follow a past practice? The Agriculture Department, so the Congressional Research Service says, has been trying to address the discrimination issues for years. It is not too much of a stretch to think that the Agriculture Department has tried in more recent years to prevent discrimination in loan applications.
To use a less serious example, suppose an employer realizes one day that its relaxed internet use policy is causing problems so it decides to prohibit all personal use of the Internet on work computers. Absent a union, an employer is not ineluctably bound by its past practices (especially when they are unlawful ones). But an employer that wants to make a "clean break" with its past practices should do so by unmistakably communicating that policy change to all affected employees.
Before the Sherrod matter, I would never have dreamed I would ever need to write a blog post about such an obvious subject. But apparently there are employers, even big ones, who make some pretty stupid mistakes.
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