A case from the Ninth Circuit Court of Appeals shows the pitfalls of inconsistent discipline. In Earl v. Nielsen Media Research Inc., the court concluded that an employee could proceed with an age discrimination case after she showed that her employer applied a formal disciplinary process to younger employees, but did not apply this same disciplinary process consistently to older employees.1

To avoid legal trouble, establish a fair and reasonable disciplinary process. The process should give the employee the opportunity to:

• Know job expectations and the consequences of not fulfilling those expectations.
• Expect consistent and predictable management action when rules are violated.
• Expect fair discipline based on facts.
• Have the opportunity to present a defense, if necessary.
• Appeal disciplinary action if company policy allows it.
• Show improvement if time permits.

To ensure that your disciplinary decisions are reasonable, fair and predictable, consider three factors before taking action:

• Work rules or performance standards
• Circumstances
• Penalties

Work Rules or Performance Standards

• Is your disciplinary action reasonable and based on the normal capabilities of others working under similar conditions?
• Is the employee working at the same expected level as other employees doing the same job?
• Did you clearly communicate the work rules or the expected performance level to the employee?

Circumstances

• Does sufficient evidence exist that the employee violated the work rule or did not meet the performance standard? Did you document this evidence?
• Did you adequately train the employee so that they can be expected to meet the required performance standard?
• Did you consult a manager or supervisor to ensure that no other circumstances might excuse the violation? For example, did the employee receive conflicting or incorrect instructions?

Penalties

• Is the penalty reasonable and appropriate for the particular violation?
• Did you give the same penalty to other employees in similar situations?
• Did you treat other employees the same under similar circumstances?

1. Earl v. Nielsen Media Research Inc., No. 09-17477 (9th Cir. 2011)