Document each stage of progressive discipline

Employers that have a progressive discipline process, in which discharge can only happen after counseling and a series of warnings have occurred, have an advantage if a terminated employee sues them for discrimination.

Those cases often hinge on showing that other employees who broke the same rule weren’t punished, and then arguing that the disparity proves bias against whatever protected characteristic the fired employee has. That’s hard to do if the other employees weren’t at the same step in the disciplinary process.

Recent case: Todd worked for a medical facility that used progressive discipline. He had several disabilities, including obsessive compulsive disorder, bipolar disorder and attention deficit disorder.

The employer’s discipline system calls for a verbal warning, a written warning, a suspension and finally termination for the fourth offense. The facility also has strict rules against disclosing any patient information to the public.

Todd received a verbal warning when he argued with his supervisor about answering phone calls. He then received a written warning for not following attendance procedures. Next, he was suspended for missing a scheduled shift. He was finally fired after discussing a specific patient in public.

Todd sued, alleging he had been singled out for termination because he is disabled. He argued that others who talked about the patient weren’t terminated.

But the employer explained to the court that the others weren’t at the same step of the disciplinary process as Todd was. That was enough to get the case dismissed. (Lindeman v. Saint Luke’s Hospital, 8th Cir., 2018)

Final note: When deciding on discipline, keep detailed notes to distinguish between similar sounding offenses. Example: Not all insubordination is created equal. A worker who rolls his eyes at a supervisor doesn’t deserve the same punishment as someone who engages in a shouting match.

Before discharge, audit disciplinary practices to detect possible pattern of discrimination

Before you make a final discharge decision, be sure to perform a brief audit to identify possible discrimination.

For example, if you are about to fire a worker for poor performance based on recent evaluations, compare him or her to other employees holding the same position in the same department.

If you find an evaluation that’s as negative or worse than that of the employee you are about to terminate, and that person wasn’t fired, ask: Do the two employees belong to different protected classes?

If so, you had better be able to explain why one warranted termination but the other did not.

Recent case: Chantelle, who is black, worked as an assistant director of a hospital. When she was fired for poor performance as demonstrated through a performance evaluation, she sued, alleging race discrimination. She pointed to two white men holding the same job title in the same division who had worse performance reviews but were not terminated. That was enough for the court to order a jury trial on race discrimination. (Humphreys v. New York City Health, SD NY, 2018)

Final note: It is critically important for HR to have input and ultimate veto power over a manager’s termination decision.

That authority must include the ability to independently investigate whether discharge is truly warranted. The investigation must be thorough and not look like it’s rubber-stamping the decision. Otherwise, the employer will be liable for any discrimination that affected the manager’s termination decision.