Trans woman sues Sam's Club over alleged discrimination


#1

Originally published at: https://boingboing.net/2017/12/27/trans-woman-sues-sams-club-o.html


#2

This is when you call SC’s employees one by one into the grand jury and get them under oath.


#3

“Performance reasons” as in “our excuses exemplify the craft of theatre”?


#4

Rob wrote:

"Performance reasons" is the sort of comically vague euphemism that happens when honesty is impossible.
I understand where you're trying to go here. It may well be that everything Ms. Bost is saying is correct and the Wal Mart spokesman is just trying to cover it up. That will come out at trial (one hopes).

But speaking as someone who has adjudicated unemployment insurance claims, employers fire people for valid “performance reasons” all the time (and invalid “performance reasons,” too!). The better employers will tell you (the adjudicator) exactly what issues they had with the former employee’s performance, because they documented them.

So no, “performance reasons” isn’t necessarily a “comically vague euphemism that happens when honesty is impossible”.


#5

“We disagree with the claims raised by Ms. Bost. Her termination was for performance reasons,”

FTFY.


#6

You appear to have missed the point, which is that when a “performance reason” is valid, it is disclosed rather than kept a secret.


#7

The more professional the HR department, the more vague they are going to be about why someone was terminated. This probably got refered to central HR, who I would expect are probably exceptionally professional and close-lipped.

My guess is bad performance reviews and a lack of improvement.

Which is something that could easily be faked by a supervisor who hated her because of her trans status. Or she may have had performance issues.

They will settle, her lawyer will get a lot of money, she will get less, and we’ll never know what actually happened.

(And yes, while I suspect the truth lies some where in the middle; neither extreme would be shocking. The supervisor may not even have realized that they were marking her lower. Bias is a hard thing to see in performance reports.)


#8

In my experience, once an employee-employer dispute goes to court, everything happens lawyer-to-lawyer. Damn little happens management-to-media.


#9

I would echo what @Avery_Thorn said.

I didn’t miss your point. However, it’s highly unlikely that any (professional) employer is going to tell the public the nitty-gritty details about why an ex-employee was discharged.


#10

Really? I’ve never worked for a company that was allowed to disclose performance complaints for liability and legal reasons. Walmarts official policy is that Walmart will not disclose the reason for the firing will only confirm you worked there & if they would rehire you. So no, they won’t disclose the reasons unless ordered to do so by a court.

In the USA companies have a huge liability if they provide any specific reasons for firing, so most corporations in the USA have a strict policy of stating if an employee was fired or not, but NEVER giving specific reasons.

Anyone who has ever hired employees and had to check references will know this is very standard.

exactly. most corporations have specific policies against disclosing this sort of information. I’m not sure why anyone thinks it would be disclosed to a reporter while there is an open legal case, that is just nuts.


All that aside, i hope this person get a fair hearing and that the truth comes, and that things are dealt with fairly. I hope that HR uses this opportunity to reenforce that discrimination of any form is not acceptable. It sucks people face this sort of discrimination on a daily basis.


#11

Perhaps the line being hunted for here is “Sam’s Club does not comment on pending litigation.”

Having thought about this more, I think this very ill-advised insinuation about the plaintiff is a sign of a panicky compromise between PR and the lawyers. The lawyers want to say nothing, irrespective of the immediate media fallout. The PR people want to say whatever it takes to get in front of a story, irrespective of the liability it creates. Lawyers used to always win these fights, but things are different now, even when they are right.


#12

They’ve already been sued. The policies you refer to are general HR ones for references and clearances. And in that context even disclosing rehiring eligibility has now become problematic.

The PR guy has, in this case, quite enthusiastically “disclosed a performance complaint” – a vague one, at the point where a credible media response would be either nothing or the beef.


#13

Agreed.

I hope this goes to trial and that the whole story comes out. It’s frustrating when people settle out of court, because they often keep everything private. Heck, even the OJ Simpson trial, as well covered as that was, left me wondering what actually happened. Just because they have a trial doesn’t actually mean that the whole truth will come out.

Best wishes to Ms. Bost in any case.


#14

Walmart’s Official Policy, not specific to any case.

Again, that is their official policy across the board. They ALWAYS do this, because that is the smart legal move.

While there are no federal laws about what employers can disclose about a termination, most states DO have laws. Lots and lots of them.

That is why the official legal advice in the USA is:

…might be different in the UK.

In the USA it is considered best legal practice to say if the employee was fired or not and if there was a performance complaint or not but NOTHING ELSE. It isn’t until a company provides any specifics that they immediately cross a legal line that makes them liable and open to wrongful termination and many other legal avenues of attack. No corporation in the USA with a lick of sense will ever give the press specifics about termination, ever. Welcome to the litigious side of the pond.


#15

Thanks redesigned, I was coming here to say this exact same thing. Sorry Rob, employment law in the US frowns on companies disclosing reasons why someone was fired as it usually exposes the company to liability. IANAL, but I’ve been on both sides of the desk often enough to pick up some clues.


#16

This what I say all of time! We make goodnik friends, no comrade?


#17

Policy for what? This issue is about PR (a reporter called about Mr. Formerlyhere). You’re talking, I think, about HR (a cop, college or employer is calling about Mr. Formerlyhere)


#18

Yet, that’s exactly what Sams Club did! They told a reporter someone was fired for “performance reasons”

I’m afraid we’re having our HR cake and eating PR too. We’re entertaining the idea that it’s fine for PR to say a plaintiff in a lawsuit was fired for performance reasons, but if PR specified those reasons before trial, that would contravene HR Policy/Employment Law/Dieu Et Mon Droit. But at the point of litigation, these worlds are far removed.

This is about what PR (not HR) is telling the media, to shade its reportage of the litigation. And in this context, there’s little to lose in disclosing a specific reason they intend to rely on at trial that they haven’t already lost by broader implication: absenteeism, laziness, malicious compliance, etc.

(Besides, as a response to a HR reference check, Sams’ Club’s vague fired for “performance reasons” line would totes generate the kind of liability at hand. No HR person would ever say anything like that in response to an inquiry!)

Why would Sams say this, then, knowing the “performance reasons” might be transparently false or irrelevant to the case? Because the facts might yet humiliate the plaintiff. The likely aim is to get the plaintiff to accept a modest settlement.


#19

Yes, just enough information to make them look good w/o exposing themselves.

Citation, please.

Bravo, now you got it!


#20

:thinking:

I suppose you are suggesting that it would generate liability to give specific truthful reasons for firing someone, but not generate liability to give a vague insinuation of negative performance.

(Notwithstanding the fact that if someone gets more than confirmation of former employment out of HR, HR is already screwing up)

(EDIT: I admit that Vice Media HR does all these things)