Not Following Your Written Policies May Be Worse Than No Policy at All

By Eric B. Meyer

What’s the point of having a written handbook policy if you aren’t going to follow it? Better yet, what are the consequences of not following that handbook policy?

(Hint: they’re bad).

This recent federal-court age-discrimination decision underscores the importance of companies following their own established rules and protocols.

Company failed to follow its own policies

The facts are not unlike many other discrimination cases. Put simply, the plaintiff here claimed that her employer demoted her because of her age. The employer responded by arguing that it had a legitimate business reason to reassign the plaintiff. And the plaintiff called BS on the “legitimate business reason,” suggesting that it was a pretext for age discrimination. That is, age was the motivating factor behind her demotion.

The court here found a reasonable juror could find that that the company’s failure to abide by its own misconduct procedures demonstrates pretext:

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Furthermore, Plaintiff points out that Defendant’s documentation regarding her demotion is potentially suspect. All of the negative performance memoranda regarding Plaintiff was created on or after May 13, 2010, a mere eight days prior to the adverse employment action. The lack of documentation at the time of the supposed incidents of misconduct indicates, at the very least, that Defendant failed to follow its own misconduct procedures. While the timing of such documentation does not lead to the automatic conclusion that Plaintiff’s demotion was because of her age, it does support an inference’ that Defendant might be covering up a discriminatory purpose. (internal citations and quotations omitted; my emphasis added).”

This case shows that not following the written policy you have may be worse than having no policy at all.

Attorney Eric Meyer will be leading a group of HR pros in a panel discussion on Social Media in the Workplace – Where is it Today, Where is it Going Tomorrow? at the TLNT Transform conference in Austin, TX Feb. 26-28, 2012. Click here for more information on this event. 

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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