Discrimination: Can you set different probation periods for different employees?

One area of discrimination that’s drawn attention is so-called “PIPs” – improvement plans and periods for low-performers. The key question courts are answering: Can you set different probation periods for different employees?

Here’s the situation a lot of HR managers face:
You have two low-performing employees, one white and the other nonwhite. You and their managers want to place the employees in a probation status – in which they have a set time, say 90 days, to get themselves on track or face termination.
Then the manager of the white employee lets the 90 days play out. But the manager of the nonwhite employee comes to you before the end of the 90 days and says, “Let’s terminate now.”
Two guides
A touchy situation, to be sure. Here’s the guidance that’s come out of some federal-court cases on how to avoid the appearance of discrimination:

1. To begin, you’re OK if, when deciding on probation periods, you set different ones for different employees. Courts generally recognize that not all employees are the same, and that you may have good business reasons for setting different periods. For example, it might be crucial that an employee gets up to speed quickly on a short-fuse project, while another employee’s quick progress might not be so critical.

2. Even if you set the same periods, you’re not stuck with them if you stipulate in the PIP documentation that a lack of progress on the part of the employee could cause the time to be cut short. In other words, in a 90-day program, a supervisor could see after 60 days that the situation is hopeless and recommend termination. Just make sure that option is spelled out in the paperwork covering the PIP.