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Keep careful records so you can show why you punished similar behavior differently

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in Discrimination and Harassment,Human Resources

Employers sometimes think that if they have a broad workplace rule in place, they have to punish everyone who breaks that rule exactly the same way. That’s not necessarily true.

The key is to make sure you can document why one employee deserved a more severe punishment than another. Possible factors include past conduct and the severity of the workplace rule breach.

Two cases illustrate how to go about individualizing punishment.

Recent case: Venus Blackshear and her domestic partner worked for the same company, Interstate Brands, in a Wonder Bread bakery. They held the same position and often worked the same shift. Blackshear is black; her female partner is white.

The company has a strict policy prohibiting violence, harassment and threats. One day, Blackshear and her partner got into a shouting match at work. Witnesses said Blackshear used curse words and threatened to knock out her partner. Blackshear was terminated, but her partner was not.

Blackshear sued, alleging race discrimination because her partner hadn’t been punished as harshly.

But the court said the two women’s conduct differed enough to justify different punishment. (Blackshear v. Interstate Brands, No. 2:09-CV-06, SD OH, 2010)

Recent case: Lori Corell worked as a brakeman/conductor for CSX Transportation until she was terminated when a train she was directing derailed. Corell had failed to check with a contractor to make sure the track was clear. No one was seriously hurt, but there was more than $100,000 in damage.

Corell sued, alleging that a male brakeman/conductor had been suspended for just 30 days after an accident in which he allowed a train to proceed on tracks that were not clear. That derailment caused more than $750,000 in damage and seriously injured another employee.

CSX explained why it had punished seemingly similar incidents—two derailments caused by obstructions on the tracks that should have been cleared before either Corell or the other brakeman/conductor allowed a train to pass.

CSX said Corell had a history of safety violations, while the other employee’s disciplinary history consisted of having been tardy once. Plus, Corell allowed the train to proceed after merely assuming that contractors had cleared the tracks, while her co-worker relied on a statement from the contractor that the track was clear.

The court was satisfied that CSX had explained why the arguably more serious accident didn’t deserve the same punishment as Corell’s. Both employees caused the same sort of accident, but Corell was habitually careless, while the worker had relied on incorrect information supplied by someone else. (Corell v. CSX Transportation, No. 08-2381, 6th Cir., 2010)

Final note: As you can see, good records are essential to justify why one employee was treated differently than another. You can’t create those records later—that will look suspicious. The key is to document the decision-making process at the time you are deciding on the discipline.

Advice: Conduct a regular review of your disciplinary processes to make sure they are fair and impartial.

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