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Using progressive discipline to avoid discrimination claims

On Behalf of | Sep 12, 2022 | Employment Law For Employers

One of the best ways to avoid claims of discrimination is to generate documentation that justifies an adverse employment action. When an employee does something egregious to warrant termination, then creating this documentation can be relatively simple. But when your adverse decision is based on a pattern of behavior, a lack of documentation can make it appear that the negative action came out of nowhere. This, in turn, can lead an employee to believe that they were subjected to the adverse employment action due to a discriminatory purpose.

How progressive discipline can help

One way to ensure that you’re generating the appropriate documentation to protect your business is to engage in progressive discipline. Here’s how this progressive discipline tends to play out:

  • Verbal warnings: Before taking any formal action, you can verbally warn your employee about the problematic behavior. This will let them know what the issue is and the fact that it needs to be corrected.
  • Written counseling: If the behavior in question continues, then you may want to think about issuing written counseling, which is essentially a written warning. This documents which behavior, specifically, is problematic, and how the employee is to address it. This written record formally puts the employee on notice of the issue and the expectation that it is to be corrected. You may want to issue multiple written warnings before moving to the next step so that you’re creating a strong paper trail of the problem and the steps that have been taken to correct it. These written warnings should also specify for the employee what could happen if they fail to correct the problematic behavior.
  • Performance improvement plan: Another step that can be taken before an adverse employment decision is implemented is the use of a performance improvement plan. Here, you work with the employee to create a strategy to give them the skills to address the shortcomings that they’ve been warned about. Again, this plan will help you demonstrate that you’ve gone to great lengths to work with the employee to improve their performance, which will help insulate you from claims that an adverse employment decision was improperly motivated.
  • Adverse employment action: Once you’ve progressed through the steps of progressive discipline, you’ll be well-positioned to make your adverse employment decision, whether that be demotion, reassignment, or termination. However, when you do take that action, make sure that you clearly define the justification for the action and refer back to all of the warnings given and efforts made to allow the employee to remedy the issue.

Other steps you can take to protect your business

There are other things that you can do to protect your business from claims of workplace discrimination. For example, when you do hand out discipline, make sure that you’re being as specific as possible. Don’t be afraid of confronting the problematic behavior head-on. After all, being vague or ambiguous leaves the door open for the employee to insert his or her belief as to why you ended up taking a certain action. Also, be sure to retain any communications that you have with the employee that may help insulate you from later allegations of wrongdoing.

Putting in the work to shield your business from legal liability

There’s certainly a lot at risk when your business is accused of engaging in discriminatory behavior. If you want to protect your business’s financial standing and its reputation in these employment law matters, then you need to be prepared to defend yourself against these allegations. Therefore, whether you’re implementing preventative measures on the front end or you’re dealing with full-blown litigation, it may be wise to have an aggressive and thorough legal team by your side.

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