If You Don't Document It, You Can't Defend It: What Two Employment Lawsuits Teach Us About Documentation

You may be sick of my documentation theme but it's so important that here is another blog about it. I am writing these posts because it's easy to think of documentation as an administrative task that can wait until tomorrow. Unfortunately, courts and juries often view documentation very differently.

When an employer says an employee was terminated for performance, attendance, misconduct, or policy violations, they need evidence to support that decision. If the records are incomplete, inconsistent, or created after the fact, a jury may question whether the stated reason was the real reason at all. Here are two examples where employers learned that lesson the hard way and didn't document to defend.

Case #1: When the Performance Records Didn't Match the Story

In Reeves v. Sanderson Plumbing Products, Inc., a 57-year-old employee was terminated for what the company claimed were failures related to maintaining accurate attendance records. The employer maintained that legitimate performance concerns drove the decision to terminate his employment.

The employee, however, presented evidence that challenged the employer's explanation. He disputed the alleged record keeping failures and presented evidence suggesting age bias may have influenced the decision. After hearing the evidence, the jury concluded that the employer had engaged in age discrimination and awarded damages to the employee.

The U.S. Supreme Court ultimately upheld the jury's right to reach that conclusion.

The HR lesson: When performance, attendance, or policy compliance are the reasons for termination, the documentation must clearly support those reasons. If the records tell a different story than management's explanation, a jury may decide the employer's justification is not credible.

Case #2: A Termination Without a Well-Documented Record

In Laxton v. Gap Inc., a store manager informed company leadership that she was pregnant shortly after being hired. She was later terminated, and the company cited policy violations and management concerns as the basis for the decision. At trial, evidence raised questions about whether those concerns had been properly documented, investigated, or handled consistently with the company's normal practices.

The employee argued that the termination was motivated by pregnancy discrimination rather than the reasons provided by the company. A jury agreed and found in her favor. The Fifth Circuit later agreed on that original verdict after the employer challenged it at the trial court level.

The HR lesson: A list of concerns created at termination is not a substitute for ongoing documentation. Coaching conversations, policy violations, performance concerns, and corrective actions should be documented when they occur, not reconstructed months later when a legal challenge arises.

Document to Defend: The Common Theme

Neither of these employers lost because a single document was missing. Instead, the juries concluded that the employers' explanations for the terminations were not fully credible. In both cases, issues with the evidence, record keeping, and supporting documentation made it more difficult for the employers to prove that their decisions were based solely on legitimate business reasons. 

Documentation creates a timeline. It shows what happened, when it happened, who was involved, what expectations were communicated, and what opportunities were provided for improvement. When that story is incomplete, inconsistent, or created after the fact, an employer may have a difficult time defending an otherwise legitimate employment decision.

The next time you're tempted to skip documenting a coaching conversation, delay a follow-up email, or assume you'll remember the details later, remember this: If you don't document it, you may not be able to prove it happened. If you can't prove it happened, someone else may get to tell the story for you.

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Evergreen HR Tip: Documentation doesn't have to be complicated. It just needs to be factual, timely, and consistent. Future-you will be grateful you took two minutes to write it down. 🌲