It might make sense to give newer employees a bit more leeway when it comes to discipline for poor job performance. After all, sometimes it takes time to learn a job well.
But if the newer employees happen to be younger than another, older employee who doesn’t get the same benefit of the doubt, you may have an age discrimination lawsuit on your hands.
The best approach: Hold every employee to the same disciplinary standards. If you have asystem, follow all of its steps unless you have a very good and defensible reason to deviate.
Recent case: Christine Earl worked as a recruiter for Nielsen Media Research. She was hired in 1994 at the age of 47 and fired at age 59.
Her job had been to sign up families to track their television viewing habits. The job required careful adherence to demographic and location standards so Nielsen could effectively market the information it gathered.
Nielsen had a comprehensive progressive discipline plan for. Employees who weren’t performing well were placed on a Developmental Improvement Plan (DIP). A DIP was pre-disciplinary and did not carry with it official discipline. Instead, it warned employees that if their performance fell further below company standards, it might lead to the next step, a Performance Improvement Plan (PIP). That, in turn, could end in “further disciplinary action up to and including termination.”
Earl was warned that she had broken several company rules. For example, she left a gift at an unoccupied home and didn’t carry a territory map she was supposed to have with her at all times. For those infractions, she was placed on a DIP. But right after, she also received an excellent evaluation, showing she was productive and overall “had a good year.”
Earl developed a medical problem, which she explained would eventually damage the nerves in her legs and cause constant pain. She told her supervisors about the condition.
Shortly after, Earl was terminated for inputting the wrong address for a household that had agreed to be a Nielsen family.
She was replaced by a much younger recruiter who was paid half as much as Earl made.
Earl sued, alleging age discrimination.
She pointed out that she never made it from the DIP to a PIP. Plus, there were several younger recruiters who had worsewho were not terminated, but were allowed to progress through the disciplinary process.
About one such employee, an HR email said, “As much as it sounds reasonable to terminate him without a PIP, it would not be consistent with our procedure.” That employee wasn’t fired until he went through the PIP process.
The court said Earl had an age discrimination case based largely on the company’s failure to follow its own disciplinary program for all similarly situated employees. In this case, there was an age gap between Earl and the employee who was not immediately terminated—which the court said was indirect evidence of age discrimination. (Earl v. Nielsen Media, No. 09-17477, 9th Cir., 2011)
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