10 ways employers can mitigate risk when disciplining employees with protected status

Let’s imagine you’re the general counsel of a distribution center near the Georgia coast. Your human resources director shares with you that one of the company’s employees, Sally, has made five or six costly mistakes in the past few weeks that have resulted in significant order delays.

Sally’s supervisor started documenting her performance and reprimanding her for her mistakes, but all the supervisor received in return was more problems and a bad attitude from Sally. The supervisor is frustrated with the situation and wants to terminate Sally. Before you can look into it further, Sally emails human resources a complaint alleging that her supervisor was creating a hostile environment and that she believes her supervisor wants to fire her because of her known disability. Sally now falls into a protected class under state and federal anti-discrimination laws such as Title VII of the Civil Rights Act of 1964.

For employers, this hypothetical situation happens all the time in the real world. Determining how best to discipline a protected employee and dealing with any ensuing claims can be costly, time consuming, and slow down business—especially when they involve an underperforming or culturally toxic employee. While they can be challenging to navigate, they don’t have to halt business.

Did Sally see the writing on the wall? Is she now “untouchable?” The supervisor adamantly denies Sally’s allegations and wants to proceed with termination but doesn’t have good documentation of the performance problems. The human resources director feels strongly that her accusation of a hostile workplace is false but is concerned that the company’s hands are now tied and she can’t be disciplined without the company facing a lawsuit.

Given Sally’s hostile work environment and discrimination claim, disciplining her could lead to the presumption that any subsequent adverse employment action was in retaliation to her engaging in protected activity. That becomes all the more valid if any adverse action is taken in close proximity to her claim. This means Sally may be able to able to meet her prima facie burden of causation based on the timing alone, shifting the burden to the company to present a legitimate, nondiscriminatory reason for the employment action.

There are several steps companies can take proactively and as the situation unfolds to ensure the business keeps running smoothly while effectively determining how best to discipline a protected employee. Companies don’t need to necessarily check every one of the below boxes but should be mindful of the strategies before and during disciplinary action.

1. Be timely when problems are bubbling up. Don’t let the employee beat you to the punch on filing a complaint when you are managing misconduct or poor performance. Document problems when they begin, not when you learn an employee has filed a claim.

2. Follow your policies and procedures, including those surrounding progressive discipline, investigating and responding to complaints, and any grievance or due process procedures.

3. If the employee has complained about the supervisor, when possible and appropriate, provide a different supervisor or offer a transfer. When that’s not possible, add in a human resources liaison to assist the supervisor and employee with ongoing relationship concerns.

4. Document all misconduct and underperformance by the employee as well as all efforts to coach and remediate the employee. Produce professional development plans and write warnings and letters of direction.

5. Have a witness present during employee communications about job performance.

6. Set expectations with the supervisor. Treat the employee like anyone else, meaning no worse or no better. Instruct the supervisor in writing not to discriminate or retaliate against the employee.

7. Instruct the employee in writing that they are still required to perform the job, fulfill her duties, and work cooperatively with their supervisor and colleagues. Reference employee’s rights and applicable policies and procedures. Give the employee a point person to reach out to if there are ongoing problems.

8. Create a firewall between the individuals handling the employee’s protected activity/complaint and the individuals managing the employee’s misconduct/discipline.

9. Institute a review person or committee to review the discipline decision without knowledge of the protected activity/complaint.

10. Document and track discipline decisions made on behalf of the company. Cross-reference this history to ensure the current discipline is in line with precedent.

Related: As compliance become more complex, employers turn to brokers for guidance, survey finds

Final Takeaway

Disciplining a protected employee is a difficult situation to handle. Employers should always take allegations of harassment and discrimination seriously. They should have established policies, procedures, and training in place to help establish an inclusive and nondiscriminatory workplace. They should also promptly respond to and discipline bad actors who harass or discriminate against others.

However, employers should not let every claim grind their company to a halt. Leaving a “problem” employee undisciplined and in place can lead to significant cultural problems in the workplace and have detrimental effects on business operations. Implementing the above strategies and consulting with experienced employment lawyers can help mitigate risk while achieving your business interests.

Sherry Culves is a partner at Parker Poe. Based in Atlanta, her practice focuses on litigation, employment and labor, as well as employee benefits and executive compensation.