Your employer just fired you without warning. No coaching, no written warnings, no improvement plans—just a sudden termination that blindsided you completely. If your company has a progressive discipline policy, this abrupt firing might not just feel unfair—it could be illegal wrongful termination.
Many employees don’t realize that when employers fail to follow their own disciplinary procedures, it can create grounds for a wrongful termination lawsuit. Understanding when these violations occur and what you can do about them is crucial for protecting your career and legal rights.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
What Is Progressive Discipline?
Progressive discipline is a step-by-step approach to workplace discipline that most employers use to address performance or conduct issues. The system typically starts with verbal warnings and escalates through written warnings, performance improvement plans, and final warnings before termination.
Most employee handbooks outline these procedures clearly. They’re designed to give employees opportunities to improve while protecting companies from wrongful termination claims.
But here’s what many people miss: when employers deviate from their own written policies without justification, they may be violating the implied contract they created with their employees.
The Legal Foundation: How Policies Create Contracts
Courts have recognized that detailed employee handbooks can create implied contracts, even in at-will employment states. When your handbook says the company “will” follow progressive discipline, that language matters legally.
This doesn’t mean every policy creates a binding contract. But when employers consistently follow their written procedures and then suddenly abandon them for certain employees, it raises red flags about discriminatory treatment.
Common Progressive Discipline Violations
Not every deviation from policy constitutes wrongful termination. Employers retain some flexibility in how they handle discipline. However, certain patterns of violations consistently create legal problems.
Skipping Steps Without Justification
The most obvious violation occurs when employers jump straight to termination without following any prior disciplinary steps. This is especially problematic when the employee had no knowledge of performance issues.
For example, if your handbook requires verbal warnings before written warnings, and written warnings before suspension, an immediate firing for minor performance issues violates that progression.
Inconsistent Application of Policies
When similarly situated employees receive vastly different treatment for identical misconduct, it suggests discriminatory enforcement of disciplinary policies.
Retroactive Policy Changes
Some employers try to justify harsh discipline by pointing to policy changes made after the misconduct occurred. This retroactive application of stricter standards violates basic fairness principles.
Ignoring Mitigating Factors
Progressive discipline policies often require consideration of factors like length of service, past performance, and personal circumstances. When employers ignore these factors systematically, they may be violating their own procedures.
When Violations Support Wrongful Termination Claims
Progressive discipline violations become legally significant when they connect to other forms of workplace discrimination or retaliation. The violation alone might not be enough—you need to show why the employer abandoned their normal procedures.
Connection to Protected Activities
If discipline escalated immediately after you filed a discrimination complaint, requested accommodation for a disability, or took FMLA leave, the timing suggests retaliation.
Discriminatory Pattern Based on Protected Characteristics
When discipline is consistently harsher for employees of certain races, genders, ages, or other protected characteristics, progressive discipline violations become evidence of systematic discrimination.
Breach of Implied Contract Claims
Even without discrimination, consistently bypassing established procedures can violate the implied contract created by employee handbooks. These claims are more challenging, but can succeed when policies are detailed and consistently followed.
Documenting Progressive Discipline Violations
Building a strong case requires careful documentation of both the violation and the surrounding circumstances. The key is showing that your treatment differed from established norms without legitimate justification.
What to Document
Start by obtaining copies of all relevant policies from your employee handbook. Many employees focus only on the disciplinary action they received, but you need the complete picture of how discipline normally works at your company.
Document how other employees were treated for similar misconduct. This comparative evidence is crucial for showing the discriminatory application of policies.
Timing Documentation
Keep detailed records of when each disciplinary action occurred in relation to any protected activities you engaged in. Temporal proximity between protected activity and discipline escalation strengthens retaliation claims.
Performance History
Gather all available performance evaluations, particularly those showing satisfactory or excellent work before discipline began. Sudden negative evaluations after years of positive reviews suggest pretextual discipline.
Employer Defenses and How to Counter Them
Employers facing progressive discipline violation claims typically raise several standard defenses. Understanding these arguments helps you prepare stronger evidence and counter their justifications.
“Serious Misconduct” Exception
Most progressive discipline policies include exceptions for serious misconduct that justifies immediate termination. Employers often try to characterize minor issues as serious misconduct to avoid following their procedures.
The key is showing that similar conduct by other employees was treated as minor misconduct requiring progressive discipline, not immediate termination.
“Business Needs” Justification
Employers sometimes claim that business necessity requires immediate action without following normal procedures. This defense works only when genuine operational needs exist that couldn’t wait for a proper disciplinary process.
“At-Will Employment” Defense
Just because you’re an at-will employee doesn’t mean employers can ignore their own policies with impunity. Courts have recognized that detailed handbook policies can create implied contracts that limit at-will termination rights.
Legal Remedies for Progressive Discipline Violations
When progressive discipline violations support wrongful termination claims, several legal remedies may be available depending on the specific circumstances of your case.
Breach of Implied Contract Claims
These claims seek damages for the employer’s failure to follow their own written procedures. Remedies typically include back pay from termination until you find comparable employment, plus benefits you lost.
Discrimination and Retaliation Claims
When progressive discipline violations connect to protected characteristics or activities, stronger discrimination claims become available. These can include compensatory damages for emotional distress and, in cases of willful violations, punitive damages.
Reinstatement Rights
In some cases, courts can order employers to reinstate wrongfully terminated employees to their former positions with full seniority and benefits restored.
Steps to Take If You've Experienced Progressive Discipline Violations
Time is critical when dealing with potential wrongful termination. Many discrimination claims have strict filing deadlines, and evidence can disappear quickly after termination.
Immediate Actions
Request copies of your personnel file immediately after termination. You’re legally entitled to this in most states, but employers sometimes delay or charge fees that discourage requests.
Document your version of events while details are fresh. Include specific dates, times, witnesses present, and exactly what was said during disciplinary meetings.
Evaluate Your Situation
Compare your treatment to how others were disciplined for similar conduct. Look for patterns based on protected characteristics like age, race, gender, or disability status.
Review your employee handbook carefully to understand what procedures should have been followed. Pay attention to specific language about how discipline “will” be administered versus more discretionary “may” language.
Consider Legal Action
Progressive discipline violations often involve complex legal questions about implied contracts, discrimination, and employer policy interpretation. These cases require careful analysis of your specific situation and local employment laws.
Protecting Yourself During Progressive Discipline
If you’re currently going through progressive discipline, there are steps you can take to protect your rights and document potential violations.
Know Your Rights
Review your employee handbook thoroughly to understand what procedures should be followed. Ask HR for clarification if policies seem unclear or contradictory.
Document Everything
Keep detailed records of all disciplinary meetings, including who was present, what was discussed, and any commitments made by management. Follow up important conversations with confirming emails.
Respond Appropriately
Take disciplinary actions seriously and work to address legitimate performance concerns. However, don’t assume that compliance guarantees fair treatment if the process itself is flawed.
When to Seek Legal Help
Progressive discipline violation cases involve nuanced legal questions about contract interpretation, discrimination law, and employer obligations. Early consultation with an employment attorney can help you understand your rights and options before it’s too late to pursue them effectively.
If you believe your employer violated their own progressive discipline procedures as part of discriminatory or retaliatory treatment, don’t wait to seek legal guidance. Understanding your options now can make the difference between a successful claim and missed opportunities for justice.
At Nisar Law Group, we understand how progressive discipline violations can mask discriminatory treatment and wrongful termination. Contact us for a confidential consultation to discuss your specific situation and explore your legal options for holding employers accountable when they abandon their own rules.
