Before you decide to throw the book at a difficult employee for breaking a rule, make sure you have enforced it the same way for all similarly situated employees. Otherwise, the employee you’re cracking down on may be able to make a credible claim for discrimination or retaliation.
Recent case: Lloyd Thomas helped another employee at a Fort Hood medical facility file an EEOC discrimination complaint.
Shortly after he let a supervisor know he had assisted in the case, he was removed from his position as an acting clinical director. The Army said the reason was that Thomas didn’t have the appropriate degree to legally manage the clinic.
Thomas was replaced by two acting directors. The first replacement had the appropriate degree, but the second did not. In fact, he had less experience and education than Thomas did.
Thomas sued, alleging retaliation for helping the co-worker with his EEOC case.
Thomas argued that he had been singled out for removal when his second replacement technically did not meet the job’s legal requirements.
The 5th Circuit Court of Appeals said that it could be retaliation to punish someone after engaging in protected activity. However, it dismissed the case based on the fact that, when Thomas filed his lawsuit, the Army didn’t yet know that his second replacement also lacked the proper degree. It only found out later. (Thomas v. Geren, No. 09-50877, 5th Cir., 2010)
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