In this case, Maria's employers might be able to establish that Maria had a poor attendance and tardiness record, but Maria's supervisor never entered any specific references to her unprofessional conduct in relation to her manner of communication with coworkers and supervisors, it will be substantially more difficult to raise those issues as defenses to claims of discrimination after the fact, once Maria has already raised them.
Likewise, the issue of Maria's accent detracting from her ability to perform the essential functions of her position would be much easier to respond to with the availability of formal entries that Maria had previously been counseled with respect to difficulties client were experiencing because Maria's accent made it harder for her to communicate with them effectively. Those facts may indeed be capable of being established retrospectively, but only after considerably greater effort and potential expenses required to do so.
Furthermore, in circumstances such as that presented by Maria's professional conduct and her accents, the employer would be in a much stronger position to refute any possible claim of discrimination if it had provided specific counseling and training to help Maria overcome any difficulties in those areas. Ideally, supervisors must first be diligent about establishing formal records of any employee performance issues or conduct that could ever be included in any staffing decisions; second, they should have an established procedure for providing vocational training for any employee whose performance necessitates a formal negative entry in the official performance record.
Had Maria's supervisor fully documented Maria's inappropriate...
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