An employee's termination routinely goes through a well-established process. The termination decision is made by the employee's manager. It is then reviewed by a more senior manager either internally or through a grievance-like process. This is often memorialized in email or a more formal document. Either before or after this review, the employee will be told of the reason for the termination. The employee then applies for unemployment compensation and the employer responds, in writing, as to why the employee was terminated. If the employee believes that he or she was discriminated against, a charge is filed with the U.S. Equal Employment Opportunity Commission and the employer (now likely represented by counsel) responds with a position statement — after which the termination decision may proceed to litigation.
Thus, in most situations, the employer will have three or more occasions to explain the basis for the termination decision, likely in writing and likely without counsel's involvement. That is, the employer will have at least three occasions to ensure that it truthfully and consistently states the reason for the termination decision, even before the employee has filed a discrimination claim.
