Progressive Discipline: How Your Policy Can Help or Hurt You in a Discrimination Lawsuit

With the recent decision of the Supreme Court to partially uphold President Trump’s executive order to place a travel ban on six largely Muslim countries, coupled with President Trump’s plans to move forward with a structure to physically prevent persons from entering the United States through the Mexico border, the word discrimination is on a lot of minds and lips. Simply typing the word discrimination into the Google search bar yields over 138 million results. Though discrimination is not a new issue in the workplace, it is still one that should be on the forefront of employers minds especially when faced with issues of discipline and termination of employees.

Although not required by federal or state law, many employers today have an employee handbook or manual. Many employee handbooks include a progressive discipline policy. A good progressive discipline policy will explain the range of consequences for certain work place offenses, that usually begin with an oral reprimand, progressing toward a written reprimand and suspension, and finally ending with termination. A progressive discipline policy can be a useful tool for employers to correct work place behavior and ensure the success of its employees, but can also be important in the litigation context. As discussed below, employers must consider and implement their progressive discipline policies before litigation arises.

In a recent Eleventh Circuit decision regarding sex-based discrimination, the Court determined that an employer?s failure to follow its progressive discipline policy could be evidence that the employer intended to act with discrimination when firing an employee. As with many employment discrimination law suits, the case turned on the particular facts. The employee made the decision to have gender reassignment surgery from male to female. The employee notified her employer of her transition, but was subsequently fired for sleeping on the job only three months later. At trial, the employee presented evidence that she had been an employee for two years with no prior discipline and that the progressive discipline policy did not list sleeping on the job as an infraction that would warrant immediate dismissal. The Court concluded that the employer’s failure to follow its progressive discipline policy could have been evidence of discrimination. It is also important to note that some emails containing evidence that the employer sought to find a work-related reason to dismiss the employee were tendered in to evidence and considered by the Court in arriving at its decision.

In light of the above decision, it is crucial that employers review, consider and follow their policies when making employment decisions. It is also important for employers to remember, and remind the managers making employment related decisions, these infamous words, anything you do or say can and will be used against you in a court of law.

If you need to review your progressive discipline policy, need to develop a progressive discipline policy or need advice on your employee handbook, contact our experienced employment law attorneys today at 770-957.3937.


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