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Penalize the worst of the worst more harshly

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in Discrimination and Harassment,Human Resources

There’s good news if you use objective and measurable productivity and goal targets to determine whether employees will receive promotions and pay increases. You can distinguish between degrees of failure to meet those goals.

For example, if three of your managers fail to meet their goals for the year, you can rate the three relatively, based on how far off they were. You can even demote one while keeping the other two in their present positions.

Just make sure you can back up your assessments.

The same reasoning allows you to impose different penalties on employees who miss the most work, compared with those who miss less work.

Recent case: Arthur Johnson, who is black, worked for the Miller Brewing Company and was promoted to a supervisory position. When production fell, Miller transferred Johnson back to his previous position. The company explained it was doing so because Johnson hadn’t met production standards.

Johnson sued, alleging that two other managers (who are white) had also failed to meet their production goals. They, however, weren’t demoted or transferred. 

Johnson’s attorneys tried to persuade the 11th Circuit Court of Appeals that it should adopt a “failure is failure” standard for race discrimination cases. If an employer has production goals, their argument went, then everyone who doesn’t meet their goals should be treated equally.

The court disagreed. It said employers are free to consider degrees of failure. In Johnson’s case, his production figures were the lowest of the three. The court said that meant he could legitimately face harsher consequences than the other two failing managers. (Johnson v. Miller Brewing Company, No. 08-16224, 11th Cir., 2009)

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