I’m not the biggest fan of progressive discipline policies, which can often be too restrictive. Plus, deviations and inconsistencies in their application are ammunition for a plaintiff claiming discrimination to get to trial. But, when companies apply these policies to the letter, they create a formidable defense to these claims.
Here’s an example.
Last night, I read a Fifth Circuit decision involving an employee at a plant in Texas. As many industrial facilities do, the company maintained an attendance policy that assessed “points” for attendance-related issues (e.g., a half-point for each lateness, 1 point for each absence without 24-hour notice). Five points would result in a verbal warning, six, a written warning, seven, a three-day suspension, and eight, termination.
The attendance policy covered the plaintiff. And the plaintiff had attendance issues.
First, the plaintiff received a verbal warning regarding his attendance and signed an acknowledgment that further attendance issues would “result in further disciplinary action, up to and including termination.” Later, he received a written warning regarding his attendance, with the same acknowledgment. A few months later, the company suspended the plaintiff after he accrued his seventh attendance point, and he signed the same acknowledgment.
The final straw came a few months later when the plaintiff called out on less than 24 hours’ notice. The company assessed the plaintiff an eighth point under the attendance policy and terminated his employment.
But, the plaintiff claimed racial discrimination.
Why, you ask?
Among other things, the plant manager had repeatedly used the full N-word when telling a supervisor that the Black workers on the floor were using the epithet to refer to each other and asking him what should be done about it. Allegedly, the plaintiff manager also told the same supervisor that the company “needed more diversity in the workplace.” The company’s workforce was predominantly Black.
Is this evidence of racial discrimination?
Does this mean that the company discriminated against the plaintiff here?
No, reasoned the Fifth Circuit:
Here, the evidence makes clear that [the plaintiff] was fired due to his repeated violations of [the] attendance policy. [The plaintiff] concedes that he was aware of [the] attendance policy, how the points system worked, and the progressive discipline imposed, characterizing it as “pretty straightforward.” And we have repeatedly found that violation of a company’s attendance policy is a valid, non-discriminatory reason for termination.
Indeed, even if the plaintiff’s evidence was tantamount to direct evidence of bias, the company could (and did) prevail by establishing that it would have made the same termination decision for reasons unrelated to race.