From the inbox:

“I’m an HR manager at a mid-size company, and I’m dealing with a situation that’s keeping me up at night. We have an employee whose performance and behavior have been slipping for months. His direct manager wants him gone — yesterday. But when I started pulling the file together, I realized we don’t have much documentation, the handbook language on this particular issue is vague, and honestly, I’m not confident we’ve handled similar situations the same way with other employees. I know we need to act, but I also know this employee could claim discrimination. How do I move forward without putting the company at risk?”

— Stressed in HR

Here’s the Truth: You’re Asking the Right Question at the Right Time

The fact that you paused before pulling the trigger puts you ahead of most. Few moments in an employer’s life carry more risk than the decision to discipline or terminate someone. Get it right and you reinforce a healthy workplace culture. Get it wrong and you’re staring down a discrimination claim with a thin file and a lot of regret.

Here’s the framework I’d walk through before making any move. The Three C’s: Consistency, Communication, and Common Sense. They sound simple, but they’re the difference between a defensible decision and a costly one.

Consistency: Have You Treated Similar Situations the Same Way?

This is where your gut check starts. Before you move forward with this employee, ask yourself — how have we handled this same behavior from other employees in the past? Were the consequences the same? Were they documented?

Consistency is what builds credibility. When discipline is applied evenly across the organization, it tells everyone that the rules are the rules, regardless of who you are. But when an employer treats the same offense differently depending on the employee, that inconsistency starts to look like something else entirely — bias.

And in a courtroom, inconsistency is the evidence. A plaintiff’s attorney doesn’t need to prove you intended to discriminate. They just need to show that Employee A got a warning for the same thing Employee B got fired for, and that the difference lines up with a protected characteristic.

What to do right now: Pull the records. Look at how this specific behavior or performance issue has been addressed with other employees — especially employees who don’t share this person’s protected characteristics. If you find inconsistencies, that doesn’t mean you can’t act, but it means you need to be thoughtful about how you document your reasoning going forward.

Communication: Did This Employee Actually Know the Rules?

You mentioned the handbook language is vague on this issue. That’s a problem.

Before you discipline anyone, ask a simple question: was the rule or expectation that this employee violated actually communicated to them clearly enough that they understood it? It’s fundamentally unfair — and legally risky — to terminate someone for breaking a rule they didn’t know existed.

Now, there are obvious exceptions. You don’t need a handbook policy to tell someone not to steal or threaten a coworker. But for the gray-area stuff — attendance expectations, performance standards, conduct policies — the employee needs to have been on notice. And “it’s in the handbook we gave them two years ago” is weaker than you think if you can’t show they were trained on it or reminded of it.

What to do right now: Trace the communication trail. Was this expectation in the handbook? Was it covered in onboarding or training? Did the manager ever have a direct conversation with this employee about the specific behavior? If the answer to all of those is no or unclear, you may need to start with a documented conversation or written warning rather than jumping straight to termination.

Common Sense: Does the Punishment Fit the Situation?

Step back from the file for a minute and look at this the way a reasonable outsider would. Does what you’re about to do make sense given everything that’s happened?

This is the common sense test, and it matters more than most HR professionals realize. Ask yourself three questions:

1. Does the punishment fit the offense? Terminating someone for a first-time minor infraction when others have received warnings for the same thing will look disproportionate — both internally and in front of a jury.
2. How will the rest of the organization see this? Your other employees are watching. If the decision feels fair and proportionate, it reinforces trust. If it feels like an overreaction or a targeted move, it erodes it.
3. How would this look in a courtroom? Employment discrimination law doesn’t technically require the employer’s decision to be “fair.” But here’s what’s true in practice — employees who feel they were treated unfairly are the ones who call attorneys. And juries are made up of people who’ve had jobs, who’ve had bosses, and who know what fair looks like.

What to do right now: Before you finalize anything, sit down with someone you trust — whether that’s legal counsel, a senior leader, or an outside advisor — and walk them through the full picture. If you find yourself struggling to explain why this consequence is appropriate, that’s your signal to recalibrate.

Putting It All Together

Here’s your action plan before you make any move on this employee:

Run the consistency audit. Pull comparable situations and verify the outcomes were aligned. Document what you find.

Verify the communication chain. Confirm the employee was clearly informed of the expectation they violated. If that chain is weak, shore it up with a direct, documented conversation before escalating.

Apply the common sense lens. Pressure-test the proposed consequence against how a reasonable person — a coworker, a juror, a judge — would view it.

Document everything. Your file should tell a clear story: what the employee did, what was expected, how you’ve handled it before with others, and why this outcome is appropriate.

The manager wants this resolved yesterday. I understand that urgency. But taking an extra week to build a defensible, well-documented case is always cheaper than spending two years defending a rushed decision in litigation.

You’ve got good instincts. Trust them, do the work, and make the decision you can stand behind.