Progressive Discipline – Warning!
by Jeannine Hohmann, Human Resources Strategist – TriStarr Staffing
Progressive discipline is intended to provide a tool for dealing with job-related behaviors that don’t meet the organization’s expected and communicated performance standards. The main purpose is to assist the affected employee in understanding that a performance problem exists and allow an opportunity for improvement. Progressive discipline that is well documented can lay a strong paper trail that may mitigate exposure to such legal problems as discrimination suits. We’ve been told over and over that documentation is critical and without it, a suspension or termination can be reversed, lead to a wrongful termination or a discrimination claim.
So the thought of not having documentation, especially in a progressive discipline situation, seems absurd! But believe it or not, there are some legal risks. According to an article in HR Magazine, “Progressive discipline may, in part, be challenged as unlawful retaliation.” In 2007, this particular charge rose to the second most common claim – it even outnumbered gender discrimination claims. The risk of unlawful retaliation doesn’t lie in the progressive discipline process itself, but instead as an outcome or consequence to how the process is handled and communicated. Take the following as an example:
You have an employee whose performance has been deteriorating over time and the supervisor wants to terminate the individual; however, no previous warnings have been issued. To avoid problems, you advise the supervisor to give this employee a written warning and allow them a chance to succeed. The supervisor does as you ask and puts a copy of the written warning in the employee’s file – two weeks later you receive notice that your organization is being sued for gender discrimination. Great! After researching the situation, the discrimination claim is unfounded. Yet, suddenly you receive another notice, but this time it is for unlawful retaliation because the employee is being excluded from regular meetings and training sessions since the discrimination claim.
The consequence of the discrimination claim caused the supervisor to ignore the employee in an attempt to avoid the problem. But in doing so caused what the U.S. Supreme Court has labeled as a type of retaliation through adverse actions. Adverse actions that can lead to an unlawful retaliation claim can be such things as: singling out the employee for more dangerous assignments; taking away a teacher’s resources or refusing to authorize funds for repairs; or excluding the individual from a training lunch that contributes to the advancement of the employee.
Though an employer can’t avoid retaliation claims, below are a few tips to help prevent such claims:
Have an Equal Employment Opportunity policy that is visible and communicated to the entire workforce
Include a separate retaliation provision in your EEO policy – this will help employees and supervisors understand what exactly constitutes retaliation.
Train all of your employees on the EEO policy making non-retaliation a critical part.