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If you have a progressive-discipline policy in your employee handbook, it’s legally wise to follow it carefully with all employees. If you deviate from it and fire a worker quickly, be prepared to provide a good reason.

It’s also a good idea to perform a regular audit of employees you discipline and discharge. Compare the progressive discipline that led to their discharge by age, race, sex, national origin and other protected characteristics.

If any disparity shows up, an employee could use it to show that the real motivation behind a discharge was discrimination.

Recent case: International Courier Service fired Francita Ward, a dispatcher, for allegedly sleeping on the job, absenteeism and being argumentative. But her employee file showed only one oral warning shortly before her discharge and two written warnings three years earlier.

Ward, who is black, filed a race-bias claim. Her key evidence: The company earlier had fired a white dispatcher only after giving that person numerous written and oral warnings. And the employee handbook clearly laid out the progressive-discipline process, which included oral and written warnings, probation and suspension before discharge.

The court concluded that the company adhered to its progressive-discipline policy with the white dispatcher but not with Ward. It said a jury should decide whether the reason was race discrimination. (Ward v. International Courier Service, No. 05-72330, ED MI, 2007)

Build an “escape clause” into your policy. In this case, the company fired the employee for seemingly minor issues that the progressive-discipline process was designed to address. That’s one reason the discharge looked suspicious to the judge.
But don’t assume you always must follow your progressive-discipline policy. Some conduct, such as violence, physical threats or safety violations, are serious enough to warrant immediate discharge. Build an escape clause into your progressive-discipline policy: Clearly state that you reserve the right to bypass the policy in cases of dangerous or illegal violations or behavior. 

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