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Hostile Work Environment Definition
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Age Discrimination or Disciplinary Policy Exception: Why Does the Text Message Generation Get More Chances?

Girl TextingDoes your company state that it will not discriminate on the basis of age, race, religion, color, nationality, disability or gender?  Does your company also have a written progressive disciplinary policy? Do your supervisors always follow each step of the progressive discipline policy?  A new court ruling says that if they don’t, you could successfully sue and win significant money damages pursuant to the Age Discrimination in Employment Act (ADEA).

The Real Case of Cynthia and Leann: Cynthia Kildoo and Leann Richter worked as retail sales associates (RSA’s) at a Cellular One store. Both were over 40. The company set specific sales quotas for its RSAs.  For those who failed to meet their quotas, like Cynthia and Leann, Cellular One instructed its store managers to follow its written “progressive discipline” procedure that was spelled out in the company’s policies.  To make sure that store managers used the discipline process fairly and consistently, the company required a second review before a store manager could take disciplinary action against an employee.  There were five stages in the published process the company said it would follow when disciplining RSA’s:

Stage 1: Verbal/informal Plan for Improvement
Stage 2: First Written Warning with Plan for Improvement
Stage 3: Second Written Warning with Plan for Improvement
Stage 4: Final Written Warning
Stage 5: Termination

Cynthia and Leann’s Store Manager fired them because the two women did not meet their sales quotas five times during a 12-month period. These two, however, thought Cellular One really fired them for their age and not for their job performance.  They believed Cellular One wanted to get rid of older workers because the younger, text messaging RSAs also failed to meet their quotas, but the younger sales people were not fired.  Both Cynthia and Leann filed age discrimination lawsuits against Cellular One pursuant to the ADEA.

In court, Cythia and Leann argued that Cellular One’s inconsistent application of its disciplinary policy showed the company’s bias against its older workers. The two women pointed to the younger RSAs who also failed to meet the company sales quotas.  But Cellular One did not terminate the younger RSAs.  Cynthia and Leann lost their jobs while the younger employees performed in a similar manner, but did not. 

Cellular One was confident that it’s full disciplinary policy would vindicate the company in court.  The company showed that the full disciplinary policy actually stated that the company “reserved the right” to impose different levels of discipline based on the particular infractions of each case. (Whitesell v. Dobson Commc’ns t/a Cellular One, 2008 WL 474270 (W.D.Pa.), 102 Fair Empl.Prac.Cas. (BNA) 1608).

Who Won In Court, and What Does It Mean for Me?

The trial court found that Cellular One could not make “exceptions” to its progressive discipline policy because most of the so-called “exceptions” allowed younger workers to keep their jobs, while workers over 40 were terminated.  When an “exception” causes a protected class (like employees over 40) to be treated worse than the group of employees as a whole, then each so-called “exception” is actually an act of illegal discrimination.

The court noted that Cythia and Leann “pointed to such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [Cellular One’s] * * * reasons for its action that a reasonable [jury] could rationally find them unworthy of credence.”  In otherwords, because Cellular One’s story was full of holes, the women’s case was allowed to proceed to trial.

The Undercover Lawyer’s Take-Away Tips:

  1. Know Your Company’s Discipline Policy. Find a copy of your company’s discipline policy.  Usually it is in an “employee handbook” or “personnel manual” that employees are given on the first day of work.  Keep a copy at your desk, and another copy at home.  Does it talk about “progressive discipline”?

  2. Does The Policy State When Exceptions Can Be Made? Many companies have discipline policies that allow exceptions “for extreme circumstances,” such as employee theft or when an employee commits a felony.  This is actually good, because it indicates that exceptions should NOT be made for simple performance or “attitude” issues — which are frequently caused by the attitude of the supervisor, not the worker.

  3. Always Document Exceptions To the Policy. Detailed record keeping is a HUGE part of appearing credible and honest in front of a judge or jury.  If you can use your notes to state the names, dates, and basic facts of when your supervisors did not follow the company’s discipline policy, but your supervisors themselves have no notes, who do you think will be more believable?  That’s right: You!  So keep a journal of any employee discipline that you know of or hear about when the policy is not followed perfectly.  And you don’t need to keep a little book at your desk marked “Journal”.  Instead, just write an email and send it to your personal email account, like Yahoo Mail, Hotmail, or Gmail (but beware employers who monitor email).  Or, simply write the facts down in an innocent looking palm-sized spiral notebook labelled “Grocery List.”
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