"Progressive Discipline" is a policy or practice that, over the years, has fallen out of favor with some employers.

What is it? It’s a practice — found also in some collective bargaining agreements — that typically provides a multi-step disciplinary process for many employment policy violations: a verbal warning, a written warning, a suspension, and finally termination.

Why has it fallen out of disfavor? Because for employers, it can be used to tie their hands.  If an employer is not free to terminate the employee for a violation, it runs the risk of having a few serial offenders who do just enough not to get fired, but not enough to satisfy the employer.  

Thus, some employers now draft disciplinary policies to state that the violations of policies and procedures of the company may lead to discipline "up to and including termination of employment."

A recent case out of the Second Circuit illustrates how one employer has gotten tied up in the legal system because of the perceived failure of the company to follow such a progressive discipline practice consistently. 

In Berube v. Great Atlantic & Pacific Co. (decided in October 2009), the Second Circuit vacated judgment in favor of the employer and found that there was sufficient evidence that the employer applied a progressive discipline practice differently towards an older worker. 

(Readers are cautioned that at the summary judgment stage, facts are to be seen in a light most favorable to an employee; a jury will now decide the actual merits of the case.)

In doing so, the Court took pains to note that the other individuals that were allegedly not fired (and who were younger than the employee) need not have the same supervisor or have engaged in the same activity. Rather, the actions must only be of "comparable seriousness" to be sufficient for use to establish a claim of age discrimination. 

The case has now returned to the District of Connecticut where is apparently awaits a trial date. (If you’d like to read the original district court decision granting the employer’s motion for summary judgment in February 2008, you can download it here.) 

So what’s the takeaway for employers? Consistency in discipline.   And if there isn’t consistency, there ought to be good documentation and support for the reasons for inconsistency.  Moreover, if the employer has a handbook with policies regarding discipline, making sure those policies are actually followed in practice is another way to provide further support to any discipline handed out.

And while I’ll leave it to others to debate the merits of a progressive discipline policy, an employer ought to make sure that if it has such a policy, it understands the consequences.