Progressive discipline among best ways to beat bias claims

There’s no law that says employers must use a progressive discipline system—but that’s no reason not to. In fact, using progressive discipline is one of the best ways to fight frivolous discrimination claims.

Here’s why: Progressive discipline provides a system for telling an employee exactly how he is failing to live up to expectations and gives him opportunities to save his job. If you eventually fire the worker, that kind of notice effectively derails any claim that discrimination caused the discharge. (Of course, you will have to show that you treated all employees the same way—disciplining all employees for the same conduct, for example.)

Recent case: Eugene Kilpatrick lost his job as a dispatcher at age 68. He immediately assumed that he was let go because of his age, since a much younger employee took over as dispatcher.

But his former employer, Tyson Foods, countered that Kilpatrick had been warned he was in danger of losing his job. He missed required meetings and ignored management directives. Finally, he was given a chance to draft an action plan to address his performance problems, but didn’t follow through. That’s when Tyson fired him.

The court rejected Kilpatrick’s age claim. Although a younger worker had replaced him, it was clear that he lost his job because of performance problems. Tyson’s progressive discipline system provided ample warning that he needed to improve. Since there was no other age discrimination evidence (such as age-related comments or a pattern showing that the company disproportionately terminated older workers), he had no case. (Kilpatrick v. Tyson Foods, No. 07-13782, 11th Cir., 2008)