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Progressive discipline can help win bias suits

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in Firing,Human Resources

Discharged employees often sue, counting on their protected status—based on race, sex, national origin and so on—to create the impression that they were fired for discriminatory reasons.

That’s why it’s important to use a progressive discipline system. It lets you counter discrimination allegations with solid, documented performance or behavior problems that warranted discharge.

Recent case: Sa’Quena worked as a store manager. At first all went well. She received regular promotions (and pay raises), including one that was approved the day after she informed her supervisors that she was pregnant.

That pregnancy ended in miscarriage and Sa’Quena was granted time off to recover.

She soon received another positive performance review, also accompanied by a raise.

Then Sa’Quena began to routinely arrive late for work, and she became pregnant again. During that pregnancy, she was repeatedly counseled about her poor attendance. She returned following the birth but her attendance didn’t improve.

Soon, supervisors found themselves having to counsel Sa’Quena on her co-worker relationships, telling her not to discuss her personal problems at work.

On one occasion, she was also reprimanded for failing to open the store on time.

When it came time for her next performance review, her supervisor told Sa’Quena that her attendance and attitude needed to improve, but gave her a small raise anyway. That’s when Sa’Quena began complaining that she was being treated unfairly because of her pregnancies. She was fired after an auditor said Sa’Quena had cursed at her and management received reports that she had also used foul language in front of customers.

She sued, alleging pregnancy discrimination.

The court threw the case out based on the lengthy and careful progressive discipline process that had identified problems during the time Sa’Quena was pregnant, but which actually had nothing to do with her pregnancy. (Llamas v. Quik Cash, No. 14-3058, 10th Cir., 2015)

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