The cardinal rule for employers is to punish like offenses the same way. But that doesn’t mean that you don’t have some flexibility.
For example, when two employees break the same rule, the underlying reasons might be considerably different.
If you decide to punish one more severely than the other, document why you don’t consider the circumstances the same. Courts probably won’t take you to task for making a rational distinction.
Recent case: Baretta Bentley and Pernela Haynes were both fired from their jobs as certified nursing assistants when they refused a request to remain at work beyond their scheduled shifts. Their supervisor asked them to stay late after learning that their replacements would be late due to unforeseen circumstances. Bentley and Haynes were both in their 60s.
At the same time, two younger nursing assistants also refused to stay. They, however, were rehired when they explained why they couldn’t stay. One had young children who would end up being left home alone. The other had a medical excuse. Because their employer thought their reasons were legitimate, they got their jobs back.
Bentley and Haynes sued for age discrimination.
But the court threw out their case after hearing the employer explain why it had treated the same offense (refusing to stay beyond their scheduled shift) differently.
Essentially, the employer explained that it didn’t believe the punishment fit the crime for the two younger employees. (Bentley, et al., v. Millennium Healthcare Centers, No. 09-1436, 3rd Cir., 2010)
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