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.


Any representations regarding the law in this Blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.



Call us at 1.855.505.SWWW (7999) today or fill out the web form to schedule your free legal consultation and case evaluation.

*All form fields are required

  • NOTICE: No attorney/client relationship shall be created as a result of this communication. No attorney/client relationship shall exist absent a written retainer agreement. PLEASE NOTE: Any submission of information is conditioned on the express agreement by you that no information disclosed as part of your request or any subsequent consultation will prohibit the lawyer or firm from representing a different client in your matter if the firm does not move forward with representing you. Further, by submitting information to us, you expressly consent to the lawyer or firm’s use of information received as part of that submission or any resulting consultation. If you do not accept these risks, do not submit information about your case to this firm without obtaining a written retainer agreement, as it will not be protected by an attorney client relationship.
  • This field is for validation purposes and should be left unchanged.