TOP TIP: Document Deviations From Normal Procedures!!!


In a prior Top Tip, we discussed the importance of documenting an employee’s performance issues, but it is equally important to document any decisions to deviate from normal procedures, as the failure to do so can suggest improper motives for the deviations.

In Bulifant v. Delaware River & Bay Authority, the employer used a system that ranked applicants numerically in four core competencies – functional and technical skills, safety, customer service, and peer relationships – based on their responses to preset questions. These rankings were an “important guide,” and applicants were typically hired in order of their ranking, but managers were permitted to deviate from the rankings to accomplish other goals, such as diversity. In accordance with the employer’s normal process, an explanation for such deviations should be given when they occur.

Several older applicants were rejected in favor of lower-ranking younger applicants and sued, alleging age discrimination. The employer was unable to offer any contemporaneous documentation as to the rationale for the decisions, and the U.S. Court of Appeals for the 3rd Circuit found that this lack of documentation was evidence of pretext for age discrimination. The employer’s attempt to offer a post-hoc explanation was not sufficient to overcome the finding of discrimination in light of the failure to follow the employer’s normal process. Also of significance, the stated reason of promoting diversity fell apart because one of the lower ranked applicants hired was, like two of the applicants who were skipped over, a white male.

This case provides an important warning to employers to ensure that the reasons for any deviations from normal employment action processes – hiring, promotions, performance evaluations, etc. – should be documented contemporaneously with the decision not to follow the normal process. And it goes without saying that the reasons should be carefully examined to make sure that they are legitimate business-related reasons.