When it comes to discipline, the primary rule is to treat similar rule violations alike. That means you’ll have to punish all kinds of people for misbehaving, even if they’re members of a protected class. Don’t hesitate to do so if their behavior warrants it.
If a minority employee commits a substantially egregious offense that might superficially resemble conduct other employees have engaged in, courts will forgive seemingly disparate treatment—as long as you document exactly why the two offenses aren’t as similar as they appeared at first. That means including details to explain the differences in any memos you create.
Recent case: Pedro Gonzalez was the only man assigned to the help desk responsible for solving IT problems for fellow employees at CPS Energy. The other eight technicians were women. Gonzalez was placed on a performance improvement plan (PIP) because his supervisor believed he was underperforming. Another technician was placed on a similar plan.
Gonzalez accessed the employer’s shared network drive, allegedly looking for a service manual when he happened upon his supervisor’s folder. Apparently very curious, he opened the folder and saw a file with his name on it. He opened that too, read what his supervisor had written about his PIP and printed a copy.
Then he told the female co-worker who was also on a PIP about the folder. She was alarmed that the supervisor’s folder was so easily accessible and told the HR office about the problem. In other words, she reported what she perceived as a possible security flaw—she rightly believed such confidential employee information shouldn’t be readily accessible to anyone who used the network.
The help desk supervisor then confronted Gonzalez, who denied he had opened the file. When he refused to cooperate with inquiries into the file-access episode, CPS Energy terminated him—but not his co-worker.
When the decision was made to fire Gonzalez, HR created a memo that explained why Gonzalez alone was terminated. The memo pointed out that Gonzalez “accessed, printed and removed ... confidential information,” and “failed to cooperate by withholding information and misrepresenting information concerning his misconduct.”
Gonzalez sued, alleging he had been treated less favorably than his female co-worker. A jury agreed he had been discriminated against, but CPS Energy appealed.
The Texas Court of Appeals overturned the jury verdict. Citing the explanatory memo created at the time CPS Energy made the termination decision, the court said the employer had justified why it treated the two differently. Printing and removing a confidential document and then refusing to answer questions about the incident was substantially more serious than accessing the file folder and then reporting a potential security breach. (City of San Antonio v. Gonzalez, No. 04-08-00829, Court of Appeals of Texas, 4th District, 2009)
Final note: The single most important thing you can do to win lawsuits is to document decisions at the time they’re made. Don’t wait until later. Be sure you have a way to show when you created the document and when you made the termination decision.
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