Dive Brief:
- A Texas hospital's failure to follow its progressive discipline policy wasn't fatal to its defense in a worker's age discrimination suit because the employer specifically provided for the use of discretion in disciplinary matters, the 5th U.S. Circuit Court of Appeals held (Salazar v. Lubbock County District dba University Medical Center, No. 20-10322 (5th Cir., Dec. 7, 2020))
- The employee, who had worked for University Medical Center for 27 years, sued the hospital after she was let go in 2017 at the age of 57. She claimed age discrimination, alleging the hospital had terminated the employment of her and several other employees and replaced them with younger workers. The hospital, however, said her work performance had declined and that she been given an opportunity to correct her performance in a performance evaluation that detailed areas of concern and directives for future improvement.
- The plaintiff alleged that the hospital's failure to adhere to its progressive discipline policy showed discrimination but the district court granted summary judgment for the employer and the appeals court affirmed. Among other things, the employer "didn't have to" follow its disciplinary steps, the court said, because UMC's policy specifically provided that discretion could be used and that management reserved the right to impose the disciplinary level appropriate to the circumstances.
Dive Insight:
Employers can't take into account a legally protected characteristic such as a person's age "when making decisions about discipline or discharge," according to the U.S. Equal Employment Opportunity Commission (EEOC).
Adverse employment actions should be consistent with an employer's established policy and procedures to avoid any inference of bias, experts previously told HR Dive.
Notably, some plaintiffs have been able to advance claims by showing that disciplinary decisions were made on an uneven basis and that age or some other protected characteristic may have been involved. For example, a Whole Foods employee alleging national origin bias because he was the only worker fired for a single incident of overstaying a break survived summary judgment in 2019. Similarly, the 3rd U.S. Circuit Court of Appeals affirmed a jury's $258,000 award to a terminated 57-year-old GNC manager who claimed younger co-workers with failing performance evaluations were treated more favorably. So, it follows that uneven discipline is often cited — sometimes successfully — by plaintiffs as evidence can serve as evidence of discrimination or retaliation.
HR can work to also ensure that employer policies are applied consistently and that performance issues are well-documented.