Mind the Gap: Risks Between Employee Policies and Practice
A legitimate business decision can still lead to an employment claim that is difficult to defend.
An employer eliminates a position to reduce costs but cannot explain why they selected that employee. A supervisor terminates a worker for poor performance, despite years of positive evaluations. A manager enforces an attendance policy without recognizing that an employee’s absences may involve protected medical leave.
In each case, the problem may not be the policy or even the underlying decision. It is the gap between what the organization says it does and what actually happens.
That gap can become especially costly during restructurings, reductions in force (RIF), and other periods of financial pressure, when difficult decisions must be made quickly. Even when the business rationale is sound, inconsistent practices, missing documentation, and skipped procedures can turn routine employment decisions into significant liability.
The financial stakes are substantial. In the 2025 fiscal year, the Equal Employment Opportunity Commission (EEOC) secured $660 million in monetary relief for victims of employment discrimination, including $528 million through its pre-litigation enforcement process.
Delivering unwelcome employment decisions with empathy and kindness can help reduce tensions and the risk of disputes.
Start With the Decision Process
Consider a RIF. The business case for reducing staff may be sound, but that does not answer a harder question: Who is affected?
Before selecting individuals, identify the work the organization still needs, the skills required, and the positions that will change or disappear. Establish the selection criteria and document how those criteria support the business need. Then apply them consistently, documenting each step of the decision-making process.
Before finalizing a group termination, consider the likely outcome as well. A seemingly neutral standard can disproportionately affect employees based on characteristics such as race, sex, age, disability, religion, or national origin. State laws and organizational policies may provide additional protections. Subjective criteria such as “flexibility,” “leadership potential,” or “fit” deserve special scrutiny when different managers may interpret them differently.
Follow the procedures already in place, too. One recurring lesson from United Educators’ (UE’s) claims is simple: Even when there is a legitimate reason for termination, such as poor performance, misconduct, or financial restructuring, skipping employee handbook requirements, grievance procedures, or other established steps can make the decision harder to defend.
What happens after the restructuring is another factor to consider. If an eliminated position quickly reappears under a different title with substantially similar duties, a former employee may argue the job never really was eliminated.
Apply Policies With Judgment
Consistent treatment does not mean identical treatment.
Attendance is an easy example. Ordinarily, an employee’s absence is an attendance matter. Repeated absences, however, may signal a medical condition, a need for leave, or the need for accommodations. Employees do not have to use the word “accommodation” for a manager to recognize that Human Resources (HR) may need to get involved.
Managers do not need to become employment lawyers, but providing enough training to recognize when a routine issue becomes more complicated helps reduce organizational risks.
Keep Performance Records Current
In a UE analysis of 71 age discrimination claims, more than 10% involved missing or nonexistent performance documentation. Without that documentation, employers had a harder time defending their decisions. That’s the case even when the claims lacked concrete evidence of age discrimination.
Train supervisors to address performance problems when they arise. They should tell employees what needs to improve, provide specific examples, and document the discussion.
Use facts, not labels. Descriptions such as “difficult,” or “not a good fit” say little about what the employee did. Document the employee’s conduct, explain what the supervisor expected, and record how the employee responded.
Be Careful After a Complaint
Retaliation issues deserve particular attention.
In the 2025 fiscal year, about 62% of employment discrimination charges received by the EEOC included retaliation allegations.
The risk increases when an adverse action closely follows a discrimination complaint, leave or accommodation request, whistleblower report, or other protected activity. That does not prevent an employer from addressing legitimate performance or conduct concerns.
Keep the processes separate. Investigate the complaint. Continue legitimate performance management based on documented expectations.
If the employee complained about a supervisor, consider whether that supervisor should have sole authority over a later evaluation, discipline, reassignment, or termination.
Before taking a consequential action, HR or legal counsel should review supporting records, the timing, treatment of similarly situated employees, and whether the organization followed its normal process.
Mind the Gap
Organizations can help keep employment decisions aligned with policy when they:
- Train supervisors. Help them recognize when a routine employment issue requires HR involvement.
- Apply established criteria. Set decision-making standards before making individual employment decisions.
- Document exceptions. Record why employees were treated differently when there is a legitimate reason.
- Follow procedures. Do not skip established steps when making difficult employment decisions.
- Know when to get help. Involve HR or legal counsel before higher-risk actions when circumstances warrant it.
- Deliver decisions with kindness. Treating employees with respect, particularly when delivering upsetting news, can help reduce friction that can lead to a claim.
The goal is not to eliminate manager judgment. It is to ensure the manager’s decisions can be explained and defended later. &

