Washington Lawyer July/August 2026
By Edward Lee Isler
Having served as legal counsel to employers on a variety of employment issues for almost 40 years, I have been involved in literally thousands of employee terminations. There are many critical considerations in guiding management through a termination decision, most of them with an eye toward avoiding a legal claim.
Yet one piece of advice for counsel stands out: Whatever the circumstance, never allow yourself to forget that at the other end of the decision is a real human being, a person whose employment will be coming to a fairly immediate, and often unexpected, end.
I start with this thought because too often employers think that the best way to address a challenging personnel situation is to simply end the employment relationship. To serve as a valued counselor and advisor may mean encouraging employers to forgo (or at least postpone) termination and, instead, consider whether the employment relationship can be salvaged through more effective counseling and coaching.
With that in mind, wise counsel should consider asking clients the following questions to reduce the legal risks associated with termination decisions.
1. If the decision is based on performance, has the employer provided the employee with counseling, warnings, and notice that the employee is not performing up to expected standards?
The most prevalent basis for termination is poor performance. In a society where we expect the world to be "fair," people generally believe an employee will not be terminated for poor performance without having first been put on notice that their performance is considered deficient and that failure to improve may result in termination. Where there is an absence of any written discipline or warnings regarding poor performance, the employee may be able to convince the court that whether they were terminated for poor performance should be a question for the jury.
Certainly, the employment-at-will doctrine establishes that either party can end the relationship anytime, with or without notice and with or without cause. However, this important doctrine is solely a contractual concept establishing that employees are not contractually entitled to their jobs. Most employment claims do not sound in contract; they arise out of statute (discrimination, retaliation, whistleblowing) or tort (public-policy wrongful discharge).
In the face of these claims, the burden subtly shifts to the employer to demonstrate that its decision was founded on a legitimate basis, not on any impermissible grounds. For this reason, prior documentation of performance counseling is critical to the employer's ability to defend its decision. In this, perhaps no documentation is more important than the employee's most recent formal performance reviews, and counsel should insist on reviewing those documents before giving advice on a performance-based termination.
2. Does the employer have other employees (past or present) similarly situated to the employee about to be terminated?
At the core of every discrimination charge is the essential allegation that other similarly situated employees outside the employee's protected class were treated differently. Counsel should thus ask whether other employees have engaged in similar conduct or poor performance and, if so, whether termination is consistent with past practice. If it is not, the employer must be able to articulate the differentiating factors. This is probably one of the most common errors made by employers in implementing discipline — failure to consider whether other previously terminated employees have engaged in the same level of poor performance or the same misconduct.
3. How long has the employee been employed, and has there been a recent change in management or job duties?
Although the law, in principle, applies in the same manner to relatively new employees as to long-term employees, in reality a judge (or jury) will question more stringently why a long-term employee is being released for poor performance or misconduct. It is critical to explore the employee's history and, especially if the employee has been a satisfactory performer for several years, whether anything has changed in the workplace leading to the current perception of poor performance. Has the employee been assigned new job responsibilities? Has the employee's manager changed? Is it possible the new manager has not given the employee a "fair shake"?
4. Is the employer being truthful with the employee? Is the employer firing the employee for the "real" reason rather than looking for a quick way out?
Human nature is to avoid conflict and confrontation. Unfortunately, this often leads management to attempt a shortcut in dismissing a difficult employee. The road to a performance-based termination seems long and cumbersome, filled with counseling sessions, performance plans, and other progressive disciplinary steps. To bypass this road, managers may seek an alternative basis to support a termination decision, such as a purported job elimination, rules infraction, or attendance problem.
Employees who are not given a truthful reason for a demotion, reassignment, or termination will usually discover, or at least suspect, that the stated reason was not the real reason for the action. The goal of the employee in an employment discrimination case is to show that the employer's stated reason is pretextual — a falsehood designed to cover up the real reason, namely discrimination. When an employer relies upon a reason that is not truthful in disciplining an employee, it deals the employee a significant "pretext" card.
5. Are there any medical issues involved with the employee or a family member of the employee?
Since the passage of the Americans With Disabilities Act of 1990 (ADA) and Family and Medical Leave Act of 1993 (FMLA), employers have been compelled to consider medical accommodation issues in addressing an employee's poor performance or attendance. In addition, several D.C. laws, such as the D.C. Family and Medical Leave Act, Accrued Sick and Safe Leave Act, and Universal Paid Leave Amendment Act, provide certain protections for employees who use or seek leave under these laws. Counsel should inquire whether the employee has asserted any medical basis as an explanation for their poor performance or attendance issues.
6. Has the employee engaged in any "protected activity" in the last year?
All discrimination and whistleblower laws prohibit retaliation against employees who assert claims of unlawful actions. Although the courts have been clear that simply making a claim of harassment or discrimination does not insulate an employee from corrective discipline or termination, counsel should inquire as to whether the employee has made any recent complaints. Further, asking for an accommodation or leave under the ADA or FMLA by itself is "protected activity" for purposes of establishing a prima facie case of retaliation. See, e.g., DuBerry v. District of Columbia, 582 F. Supp. 2d 27, 37 (D.D.C. 2008).
7. Has the employer followed its own policies and procedures regarding discipline and termination?
Although most employment handbooks disclaim a contractual status to avert potential breach of contract claims, an employer that does not follow its own policies runs the risk of allowing the employee to establish an issue of pretext in a discrimination action. Counsel should ask employers if they have a progressive discipline or termination policy, and if so, review it while offering advice on the termination.
It is both a privilege and a burden to walk alongside employers as they deal with difficult employment situations, including those that necessitate termination of the employment relationship. To provide sound counsel requires a thoughtful approach and asking the right questions, while never losing sight of the reality that a real person will be affected by this decision.
Edward Lee Isler is the founding partner of IslerDare P.C., a management-side labor, employment, and employee benefits firm that has served the mid-Atlantic region for almost 30 years.
