Following your own rules for discipline, promotion and evaluation is the best defense against a discrimination lawsuit. But that doesn’t mean you can’t make exceptions to your rules when the situation calls for it.
Just make sure that you document why you made the exception at the time you did. That way, you can later explain what happened.
Recent case: Keith worked as a professor of mathematics at Kutztown University. He earned good reviews on his first contract renewal evaluation. The next round, the reviews were mixed, with some evaluators scoring him very poorly on several measures, such as student engagement. When it was time for a tenure decision, he was rejected.
Keith sued, alleging sex discrimination. He claimed that female math professors got tenure without having published as many papers or attended as many conferences as he had. Plus, he argued that publications were one of the specific things the university listed as a requirement for receiving tenure.
The university countered that it had granted tenure to six math professors in recent years, half women and half men. Tenure records showed that the three promoted women didn’t have extensive publication histories. However, the committee had instead considered their student engagement ratings and classroom work as substitutes for academic publishing.
The court said that explanation was reasonable and didn’t prove that Keith was rejected due to his gender. (Kull v. Kutztown University, No. 13-1600, 3rd Cir., 2013)