Have a progressive-discipline system? Great! But reserve right to fire immediately if necessary

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in Discrimination and Harassment,Performance Reviews

Many employers have a progressive-discipline system. Usually that’s good. But sometimes you may need to deviate from the disciplinary script.

Progressive discipline often makes more sense for lower-level employees than for white-collar workers. While being rude and argumentative may not have much impact on the factory floor, it may be a huge morale problem in the executive suite.

To keep your options open, make sure you explain that the disciplinary system is for guidance only, and that you reserve the right to apply the rules based on the individual circumstances of a particular case.

Recent case: Janice Foss, who is black, worked for Coca-Cola Enter­prises as a cold-drink sales manager. She got generally positive reviews until a new supervisor arrived on the scene. The two did not get along and each criticized the other’s work style and productivity.

The supervisor described Foss as “belligerent,” “destructive,” “unprofessional,” “condescending” and just plain “rude.” He then advised her on ways she could improve her communications style so that her ideas—which he admitted were often good—would be better received. But when things didn’t improve, he fired Foss.

She sued, alleging racial discrimination.

As proof, she argued that she had been singled out for discharge before she had gone through Coca-Cola’s progressive-discipline system. That program provided for a series of actions: first counseling, followed by an oral warning, a written warning and, finally, termination.

Coca-Cola admitted it had a progressive system and that it did not follow it when Foss was fired. But it also explained that it viewed progressive discipline as a tool to use under some circumstances when it thought the employee could improve and become an asset to the company again.

It also pointed out that it did not use the policy in every case, and that Foss’ situation was not unique. In other words, it claimed that Foss was not singled out because of her race, but because it believed she would not change her behavior.

Coca-Cola also showed the court that it had terminated 11 white employees without first subjecting them to progressive discipline. It also showed that the supervisor had promoted nine black employees before he sought to terminate Foss.

The court dismissed Foss’ case. It said the company had explained why it didn’t use progressive discipline with Foss and shown that her race was not the reason it fired her. (Foss v. Coca-Cola Enterprises, No. 07-CV-1322, ED NY, 2011)

Final note: Be sure you document why you have chosen not to apply progressive discipline to a particular employee. And double-check that there isn’t a pattern of doing so just for employees who belong to a protected class. Better yet, clarify that you will apply different standards to higher-level employees than you do to the rank and file.

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