Exactly. Paper trail, continuous dinging. Just got to have the temerity to go through the legal process. Business never personal.
Short HR training for your brother... The most important thing about disciplinary action is documenting factual information. Our organization uses a documentation procedure called FOSA, which stands for "Facts, Objectives, Solutions, Actions." For every single infraction by every single employee (you can't ding one employee for a behavior or action, then ignore the same action from another), fill out a sheet of paper that includes... Facts - Detailed facts about the infraction... Example - On December 1, employee X was 30 minutes late with car trouble, then on December 7, was 15 minutes late because (s)he overslept. Objectives - Detailed explanation of the desired behavior... Example - Company policy states that employees should arrive at work at their scheduled time. Solutions - If the manager has things in mind that might help the employee solve the problem, list them here... Example - The department will conduct a safety training to make sure that all employees have been properly trained in the safe use of lab equipment. Actions - Provide an expected timeframe for the desired behavior to occur, schedule any necessary reviews, and outline the next action that will be taken... Example - You have three months to meet the objectives we established. I will review with you each month your progress, unless a review is warranted sooner. Failure to meet the objectives could result in further disciplinary action, such as a written warning. If you use this process, write the employees up for actual infractions, and apply the above process consistently for all employees, you will be able to fire anyone once the paper trail gets long enough. There won't be any he-said, she-said since everything leading up to the firing will have been written down, discussed with the employee, and placed in the personnel file. The only real way to get into trouble is by writing some people up using this process while letting others slide for the same infractions. More examples and expanded discussion here. http://ftp.collin.edu/hr/fosa/fosa.htm
All things being equal, he will hire the white guy because he doesn't have to deal with the BS if it doesn't work out. That is racist.
I guess you need to clarify which "system" you are talking about. If you are talking about your brother's company their system sounds like its got some problems. If you are talking about society the US government, affirmative action and etc.. It doesn't sound like those have anything to do with your brother not being able to fire underperforming black employees.
...including training on how to properly document poor performance so that defending against a lawsuit becomes a trivial exercise. That is what we did, we got trained on proper procedure and as long as we properly document, we can fire anyone we want.
It is the manager's duty to come up with the appropriate documentation to assure that such a lawsuit is easily defended.
So you're basically saying that company policy has caused him to treat all blacks different in all his walks in life?
I wouldn't consider your brother racist. To me, racist is making assumptions about someone's character, behavior, etc based on skin color. In this case, the company has made it a fact that it is more difficult to fire a minority then a caucasion. Your brother isn't making any assumptions. Actually put it as your company has racist policies, since they are assuming the behavior of a minority...that is that a minority will file a wrongful termination lawsuit if given a chance.
Texas would have nothing to do with it. You can't fire someone for almost any reason in Texas, but you can't fire him or her for being black - in Texas or anywhere else - so if they sue for that reason, you still have to defend the lawsuit. I'm not agreeing or disagreeing with the rest of your post, but if the concern is lawsuits, that concern is no different in Texas than anywhere else. As for the original post, the guy should fire whoever he wants and tell HR to deal with it. If they don't want to, he should tell them that if they fire him, he will sue for trying to make him hire & fire on a racial basis, which is illegal.
