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Discipline / Investigations

Two employees involved in same incident? Punishment can differ if it’s not discriminatory


If two employees break the same workplace rule, they should receive the same punishment. But that doesn’t mean you can’t distinguish between degrees of culpability. It’s perfectly fine to terminate an employee who has a long history of rule breaking and retain another because it’s a first offense.

Required: Investigating all harassment complaints Not required: Providing a perfect workplace

Sometimes an employee may feel uncomfortable with the close proximity and may even interpret another employee’s innocent behavior as sexual harassment. While you must respond to every sexual harassment complaint and investigate, that doesn’t mean each incident warrants corrective action. Use common sense.

Passage of time can kill retaliation claim


There’s some good news for em­­ployers concerned about retaliation after an employee participates in protected activity such as testifying in another employee’s discrimination lawsuit. If a substantial amount of time has passed since the employee’s testimony, any disciplinary action you take probably won’t be enough to form the basis of a retaliation claim.

Your detailed records: Keys to legal victory


You never know which employee will file a discrimination lawsuit. These surprise lawsuits often allege that the employer disciplined ­others outside the employee’s protected class less severely for the same transgression. Protect your organization by providing detailed reasons for any discipline at the time it occurs.

Keep consistent records of all disciplinary actions

You must track all disciplinary actions. That way, you can quickly determine whether your discipline has been equitable.

Court: Retirement isn’t constructive discharge

Do you worry that encouraging someone to retire when he’s facing disciplinary action could backfire? Relax. In most circumstances, a voluntary retirement that isn’t pressured or forced because of a threat of imminent discharge isn’t considered a constructive discharge.

Documentation is key to winning bias lawsuits–along with clear policies, thorough investigations


When terminating several em­­ployees at the same time, make sure you have carefully documented the reasons. That’s especially important if the employees share common protected characteristics such as age. You want to be prepared for a lawsuit if they decide the real reason they lost their jobs was their protected characteristic.

Discipline OK for stonewalling investigation


Sexual harassment allegations often come down to he said/she said arguments. Without hearing from both sides, there’s no way to figure out what happened. If one of the people involved in the allegations won’t talk, you can discipline him for refusing to co­­operate.

Worried about ADA: Can we discipline for misbehavior caused by medical condition?

Q. One of our employees recently violated a work rule by shouting at his supervisor. After the incident, the employee disclosed to the company for the first time that he had a mental disorder that he claims caused his conduct. Can we discipline him, or would that be disability discrimination?

Sudden discipline after exemplary record? Don’t rule out supervisor prejudice


Employees with excellent performance records often head straight to HR the first time they face disciplinary action. And you’re right to worry enough to take a careful look at whether the proposed discipline is warranted. It’s possible that a boss’s prejudice may have motivated the discipline.