Different Probation Periods for Different Employees?

Can a manager set different probation periods for different employees? Or is it discrimination?

Here's a situation a lot of HR managers face:

You have two low-performing employees. One is white and the other is non-white. You and their managers want to place the employees on a Performance Improvement Plan ("PIP"). While on a PIP the employees have a set amount of time, 90 days for instance, in which to correct any performance (or other) issues.

The manager of the white employee wants to give the employee the full 90 days. The manager of the non-white employee decides, prior to the end of the 90 days, to terminate the employee.

Is this discrimination?

This is a difficult situation. To avoid charges of discrimination, here's a bit of guidance:

1. You're okay if, when deciding on probation periods, you set different ones for different employees. Not all employees are the same and you may have good business reasons for setting different periods. For example, it may be crucial for an employee to get up to speed quickly on an urgent project, while progress by the second employee may not be so urgent.

2. Even if you set the same time frame on the PIPs, you're not stuck with them IF you stipulate in the PIP that lack of progress on the part of the employee can cause the time to be cut short. As a manager, if during a 90 day PIP you see little progress after 60 days and you recommend termination, ensure that information is clearly spelled out in the PIP paperwork.