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Progressive Discipline and the Tenure Clock
March 16, 2011 - 9:36pm

In most non-tenure based settings, managers use “progressive discipline” to address many employee issues. Progressive discipline is the practice of establishing a series of steps of escalating seriousness, starting with the minor (a verbal notice) and culminating in the major (termination). In most cases, the stages go something like this: verbal warning, written warning, written reprimand, suspension, termination. The idea is to give the employee ample opportunity to turn problems around. If it works, great. If it doesn't work, and you have to move to termination, at least the employee can't claim that it came out of the blue. And when the inevitable retaliatory lawsuit hits, the employer can show that s/he made a series of good faith efforts to save the employee before finally concluding that the effort was futile.

(To be fair, in extreme cases you can skip steps. If an employee commits a felony, you don't issue a verbal warning.)

That model makes sense when the clock isn't ticking. When someone's employment is at-will, or contractual, or even tenured, the model can apply. But it doesn't work well with the tenure clock.

From the employer's standpoint, there's a basic asymmetry in life tenure. The institution is bound for the life of the employee, but the employee can leave at any time for any reason or no reason. In practice, the best ones are the likeliest to leave, since they're the likeliest to get other offers.

For all the folks who call for 'transparency' in the life tenure process, the basic fact is that life tenure is really a decision about the future, and the future isn't transparent. The fundamental asymmetry means that the employer is forced to roll the dice, based on whatever information has come to the fore during the pre-tenure period. Since there will never be enough information to predict the future with any certainty, hunches necessarily come into play. Those hunches will be partial and flawed, but in the absence of a crystal ball, there's no way around that. In that setting, the best that can be done is to use the pre-tenure period as broadly indicative, even though it may not be.

And that's one way that progressive discipline creates a problem. You're trying to get a pure sample to predict future behavior. Progressive discipline contaminates the sample. It's the difference between seeing how someone drives when no cops are around and seeing how she drives when there's a trooper in the rear view mirror. Even if she obeys the law in the latter case, you've lost the predictive value of the sample. The presence of the trooper distorts the information.

Logistically, there's also the issue of running out the clock. Walking through every step of progressive discipline takes time. Tenure decisions happen on a timeline, and they're up-or-out. There's no such thing as “let's give a couple more years for the dust to settle and see where we stand.” That is simply not an option. The person is either granted lifetime tenure or fired. If that fish-or-cut-bait moment comes in the middle of the series of steps, the employee could plausibly claim that an adverse decision was premature; after all, she was entitled to more steps. But adding time would automatically trigger tenure, which defeats the purpose. By that logic, a marginal tenure candidate could force the decision her way simply by committing the right level of misconduct at the right time, and riding out the clock. It would be absurd.

I'd argue that the issue here isn't so much progressive discipline, which strikes me as generally reasonable in non-extreme cases, but life tenure itself. A single high-stakes, up-or-out decision creates serious distortions, no matter how it goes. It can't not. Sometimes the most reasonable and fair answer is neither ‘up’ nor ‘out,’ but rather ‘we need more time to decide.’ But that’s off the table. So with ‘waiting for the dust to settle’ ruled out, the most important thing is to get the clearest possible read of the person prior to tenure. Offer orientation and mentoring in the first year, but after that, leave them to their own devices for a while. See how they drive without a cop in the rearview. I don’t like it either, but with a short window prior to an irrevocable lifetime decision, it’s what has to be done.

 

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