Employees who charge discrimination often have to prove that others outside their protected class were treated more favorably than they were.
But what if the employer can show that others belonging to the same protected class got better treatment than the employee who sued? That can often get the case dismissed.
Recent case: Jewel Food employee Kennedy Thorne, who is black, had a disciplinary problem. In fact, in the years before he filed a race-based EEOC discrimination complaint, he was disciplined 52 times for everything from productivity problems to working unsafely to failing to comply with rules for clocking in and taking breaks.
After his EEOC complaint, he incurred additional disciplinary charges under a newly issued progressive-discipline program, which said employees could be fired after a fifth infraction. He incurred five incidents, most involving long, unapproved lunch breaks.
Thorne added retaliation to his lawsuit.
But Jewel Food pointed out that he couldn’t show that another employee not in his protected class was disciplined less severely for similar rule violations. And, according to the company, other black employees had been disciplined less severely than Thorne. To the court, that indicated that the company had not targeted Thorne because he was also black. It dismissed Thorne’s case. (Thorne v. Jewel Food Stores, No. 07-C-2251, ND IL, 2010)
Final note: Remember to track all disciplinary actions for future reference. You don’t know who will sue, or for what reason. Be prepared.