Episode 24 - How To Fire People Properly - Part 2: The Logistics Of Letting Someone Go with James Bryton and Dr. Dennis Davis

HeadHeart

Jul 7

Too many managers don’t realize that generic phrases like “you're not a good fit” are a legal minefield. According to both Dr. Dennis Davis, a clinical psychologist and national training director at Ogletree Deakins, and James Bryton, Of Counsel at Littler Mendelson employment law firm, the leaders who handle terminations most effectively are the ones who treat the conversation as a human event first and a legal transaction second. They also stress that how someone feels when they walk out the door determines almost everything that happens next.

What should you actually say when you fire someone — and what phrases guarantee a lawsuit?

Here is the counterintuitive truth that James Bryton, Of Counsel at Littler Mendelson and a former civil rights litigator, leads with: the phrases most managers think are legally safe are actually the most dangerous ones.

“The times we get into trouble is when they just went in and said the company's going in a different direction, or 'you're not a good fit here' – some generic phrase that everyone says. Those are the magic words for us to be in a lawsuit, not the magic words to get you out of one.”

– James Bryton, Of Counsel, Littler Mendelson

But why is this the case? When an employee is fired with a vague explanation, the silence fills itself in. If no one ever communicated a performance problem, and the review six months ago was glowing, the employee's brain connects whatever dots are available. Often those dots lead to a discrimination claim.

Approximately 60% of all EEOC lawsuits involve a terminated employee, and the EEOC achieved a 97% success rate in resolved merits lawsuits in 2024. Employers who end up in federal employment litigation lose nearly every time. The business case for doing this better is not abstract. It is, in fact, very, very specific. (Very, very expensive is also accurate, but specific felt more polite.)

James’ prescription is simple, but it requires courage: just be honest. Say what the actual reason is. Explain where performance fell short, or where the role has evolved beyond the person's current skills, or why the fit has changed. Honesty is not a legal liability. Vagueness is.

What is the “middle lane” in employee separations and how do you use it?

Most leaders default to one of two mental buckets when it’s time to let someone go: termination for cause (they did something wrong) or layoff (the business changed). James calls this a false binary.

The middle – and most underused – lane is the mutual separation: neither a firing nor a layoff, but an honest acknowledgment that the fit has changed. Think: the startup CFO who was exactly right at ten employees, but isn't the person to take the company public. The SVP who was excellent in a smaller role, but has been outpaced by organizational growth. These situations are neither misconduct nor restructuring. They're about a mismatch, and they deserve their own framework.

“More people really do fall into this middle lane than people realize. We want someone to go. We don't really know what it looks like. They ultimately get pushed into the other two buckets — but really, they're just no longer a fit here.”

– James Bryton

The middle lane (mutual separation) works because it gives both parties something to hold onto. The employer retains clarity and control over who they employ. The employee gets the thing that matters most in a destabilizing moment: agency. They were part of the conversation. They had a chance to say what they could offer. They get a clear, honest understanding of what happened and why. Turns out, a breakup doesn't have to become a war.

Dr. Dennis Davis adds the psychological frame: people who feel out of control reach for control wherever they can find it. Sometimes that's a lawyer. Sometimes it's something worse. The antidote is giving them real choices, not performative ones, about what happens next.

Which brings us to the severance package. COBRA costs the employer very little in actual dollars. But for the employee with a dependent on their health insurance, it may be the difference between feeling abandoned and feeling like they were treated like a human being. Outplacement services, a transition period, a consulting agreement, input on how the news is communicated to the team…none of these are expensive. But all of them change how someone walks out the door.

James’ question for designing packages is simple: “If it was you, what would you want?” Whatever the honest answer is – that's where to start.

How do you structure a termination meeting: logistics, timing, and what not to say?

For Dennis, there’s a specific formula that makes for a proper termination:

Never on Friday. If someone is terminated on a Friday afternoon, they spend the weekend stewing with nowhere to go and no one to call. The professional world is closed. The anxiety compounds. So, Tuesday is better. Even more specifically, 11:30 AM is the ideal time because people are moving around, heading to lunch, and a departing employee can slip out without it becoming a spectacle.
Keep the meeting under ten minutes. This is not a performance review. It is not the place to relitigate the past six months or share your feelings about how hard this was for you. State the decision. Explain the reason clearly and honestly. Then move forward.
Don't sit between the person you’re letting go and the door – it may make them feel trapped. And don't dim the lights.

“I like a room that's medium to bright in terms of the lighting because that makes people feel like you're being transparent and honest. Whereas if the lights are dimmed, it feels like you're covering up or hiding something.”

– Dr. Dennis Davis, National Training Director at Ogletree Deakins

Don't share your own emotions. Don't prompt for theirs. And do not, under any circumstances, say “I feel so badly about this.” Save it for your therapist – you have a job at the end of this conversation. They do not.

The behavioral science anchor for all of this is the peak-end rule: people judge experiences by their emotional peak and by how they ended, not by their average. A termination will always have an emotional peak; that's unavoidable. What is controllable is the ending. The goal is that someone walks out of that room understanding what happened, knowing they were treated with respect, and with enough resources to take the next step. And ultimately, that’s what keeps them from calling a lawyer.

What to do this week:

If you have a separation coming, do two things before you schedule the meeting:

Ask yourself James’ question: if this were happening to me, what would I want? Design the package around that answer – not around the legal minimum.
Write down the actual reason for the separation in plain language. If you can say it honestly to yourself, you can say it honestly to them. If you can't, that's your sign that more upstream work needs to happen first.

If you haven't listened to Part 1 of this series, where Dennis covers everything that leads up to this moment, from performance conversations to PIPs to the myth of niceness – go check it out. This episode is about the exit. That one is everything that should have happened before you got here.

Related Episodes

– How to fire people properly - Part 1: When waiting too long goes wrong with Dr. Dennis Davis

– Conflict at Work: Amy Gallo on How to Have the Hard Conversation You've Been Avoiding

– Toxic Leadership Explained: What Makes a Bad Boss with Mita Mallick