Consistently apply progressive discipline

Progressive discipline sounds like a fair, nondiscriminatory process. Employees who fail to improve their work performance or quit breaking the rules slowly move towards termination.

But progressive discipline may end up becoming a trap for employers that don’t scrupulously honor the underlying purpose of the rule being implemented: to help employees improve and prevent unnecessary terminations by pushing workers in the right direction.

The problem: What if an employee is doing better but gets fired anyway?

Recent case: Jeffrey, who is black, had a series of workplace infractions on his record. His employer used a progressive discipline system that had the stated purpose of helping employees improve.

Jeffrey was terminated when he got into an argument at work. His employer argued it fired him because Jeffrey had a long history of disciplinary actions, including prior incidents of arguing and not doing as he was told.

He sued, arguing that a white co-worker was not fired for a similar disciplinary history.

That got him through the first phase of the lawsuit. Then he had to show that race was the underlying reason why he was discharged while the white co-worker was not.

Jeffrey argued that the progressive discipline system was designed to help workers and that it was manipulated as an excuse to fire him. For example, he pointed out that he went several years with no infractions and good performance reviews. He said that wasn’t considered before he was fired.

The court said the omission of positive information could be seen as proof of pretext. A jury will decide if discrimination was the real reason Jeffrey was terminated. (Daniels v. Texas DOT, No. 4:14-CV-00702, ED TX, 2016)