How to discipline employee for discrimination

Published: June 6, 2025 | by Brightmine

Discrimination can take many forms, from hiring and firing decisions to harassment and can be based on race, color, religion, sex and many other protected traits. In the work environment, discriminatory acts can lead to liability for the organization.

Consequently, HR teams and managers should know how to conduct a discrimination investigation and respond appropriately, which may include disciplining an employee for discrimination.

Here we outline the steps to manage the situation appropriately and in compliance with legal and regulatory requirements.

First, make sure you’re prepared to receive reports.

It’s important to establish appropriate policies and process on how to report discrimination incidents. You should:

• Review your internal employment discrimination policies and investigation procedures. Do your internal definitions of discrimination follow federal and state laws?
• Check your document retention practices. Are they compliant with relevant legal requirements?
• Review federal, state and local compliance requirements. Even if an employee isn’t discriminated against under Title VII, it could fall under state or municipal law.
• Have a clear procedure for employees to report incidents of discrimination.
• Audit employee and manager training. It can be helpful to provide definitions, information, and resources to help supervisors prevent and correct discrimination in the workplace.

Having the right foundations in place is critical. Review your policies and process regularly to ensure you’re remaining compliant with all relevant laws and regulations.

Respond to the report of discrimination according to your company policy.

Respond to any complaints of discrimination promptly:

• Responses can be made in writing or verbally.
• Acknowledge receipt of the complaint in alignment with your company policy.
• Check whether the incident has been reported internally only or has also been reported to a state civil rights agency and/or the Equal Employment Opportunity Commission (EEOC).
• Conduct a thorough and appropriate investigation.
• Use the findings of the investigation to inform the decision.

Choose an investigator and consult counsel

An internal trained and certified investigator should lead the investigation. At this point you should also consult with your internal or external legal counsel.

The investigator should start by interviewing the employee who made the initial report or complaint. This is an important information gathering exercise and will determine the appropriate next steps and focus of the investigation.

Initiate an internal discrimination investigation

After gathering information from the complainant, the investigator will continue interviewing all other relevant parties. They will also gather any available supporting evidence, like video footage, emails, or other communications.

The investigator will provide their findings to the employer, which will inform the appropriate level of discipline. This decision should be consistent with company policies and past practices.

In union environments there may be additional factors to consider. Typically, union employees have the right to union representation during investigative interviews. The disciplinary process may also be subject to specific requirements outlined in the union contract.

Consider whether temporary changes to the work environment are appropriate.

When handling alleged discrimination complaints, it’s important to consider whether temporary changes to the work environment are appropriate during the investigation process. For instance, if the employee faces a further threat, it may be appropriate to move them to another setting.

However, the employee should not feel that these actions are discriminatory against them.

If you operate in a union environment you must also consider collective bargaining agreements.

Take disciplinary action if necessary

Any investigation should be thorough, unbiased, and accurate in its findings. Once a positive determination has been made, it is also important to:

Ensure consistency

Review the organization’s records and consult written policies to determine an appropriate response. The severity of the discipline should match the level of misconduct.

Ensure that the employee is treated consistently with others who have engaged in similar actions. If there is a valid non-discriminatory reason for a different approach, be sure to document it.

Follow progressive discipline when appropriate

Most organizations have progressive disciplinary processes in place, which usually consist of:

• verbal warning
• written warnings
• suspension
• termination

The steps followed should align with current policies and actions taken in similar previous situations. However, an employer is not obligated to follow all steps in every situation. For example, severe misconduct might warrant suspension or termination without a prior verbal or written warning.

Document the disciplinary action thoroughly

Policy violations should be fully recorded and accurate. Dates, times, and details of the conduct should be included, as well as the impact on the employee affected and the impact on the organisation. You can also include information on previous disciplinary actions.

Have the employee sign and acknowledge receipt of the disciplinary action. Make sure the employee understands the appeal process, if any.

Prepare for potential employee response

Disciplining an employee for discrimination doesn’t always proceed smoothly. An employee can file their own discrimination complaint, or consult with an attorney to challenge the discipline. In union environments, grievance filings are also possible.

Take any needed remedial action

Depending on the nature of the discrimination and the employee’s history and response, you could also consider remedial actions:

• Mandatory diversity, equity, and inclusion training
• Anti-discrimination education programs
• Coaching on appropriate workplace behavior
• Regular check-ins to monitor improvement
• Mediation between affected parties (if appropriate and desired by the complainant)
• EAP assistance for affected employees

Additionally, performance reviews should be adjusted if ratings were based on discriminatory reasons.

There are several considerations to keep in mind when investigating discrimination in the workplace and determining how to discipline employees for discrimination. And in a constantly changing regulatory landscape, fines and penalties for missteps can be significant. But having the relevant documents, processes and procedures in place can help.

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