7. How can I avoid breaking the law when I discipline or fire an employee?

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Unfortunately, it may be necessary for you to discipline or terminate an employee. There are many reasons why this action may be justified. Even so, it is possible that taking disciplinary action may result in a discrimination charge or complaint.

Ensuring that managers involved in discipline or termination decisions understand their responsibilities may help prevent discrimination.

• Ensure that disciplinary and termination decisions are not based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, disability, age (40 or older) or genetic information (including family medical history).
• Ensure that disciplinary and termination decisions are not based on an employee's decision to report discrimination, participate in a discrimination investigation or lawsuit, or oppose discrimination (for example, threatening to file a discrimination complaint).
• Ensure that the decision to discipline or fire the employee is consistent with your discipline policy, or that you can justify treating the employee differently.
• For example, your discipline policy may state that employees who are absent from work without authorization for three days will receive a warning. You may decide to waive the warning for an otherwise reliable employee who missed three days of work because of an unexpected family emergency.
• Consider documenting the reason(s) for the discipline or termination.
  • This may help you defend your business if a discrimination charge or complaint is filed.
• To prevent misunderstandings, it may be helpful to explain the reason(s) for the discipline or termination decision to the employee.
• Respond promptly and effectively to discrimination complaints regarding disciplinary action.
• Retain any disciplinary records as required by law.
  • If an EEOC charge of discrimination is filed, keep relevant records until the charge is resolved.

See also:

Handling Internal Discrimination Complaints About Disciplinary Action

Preventing Retaliation Tips

Manager Responsibilities - Treating Employees Consistently

Example - Justifying Inconsistent Treatment