Should adverse employment decisions be documented?
Yes. Both the adverse decision and any prior counseling should be documented. There is evidence that juries expect that adverse employment decisions will be documented by the employer, particularly if there is a possibility that a key person in the company will be subject to a claim that he or she acted with discriminatory intent. In these situations, juries seem to believe that the top people in the company are smart enough and have sufficient resources to protect themselves through documentation. Even though there may be other reasons why documentation does not exist, such as lack of time or the press of other matters, there is some evidence that a jury will nonetheless infer that no documentation exists because no valid documentation could be made. The top officials in medium and large companies must also realize that juries are very sensitive to the power imbalance that exists between the top people and rank and file employees. Consequently they are going to look very carefully for indicators that the employee was treated fairly.