Yourprobably gives you some flexibility to hand out different punishment, depending on the seriousness of the employee misconduct. As a practical matter, that means you must decide whether what one employee does is more serious than another’s similar transgression.
Make sure you’re able to explain why one offense was worse than another and deserved harsher punishment. That will save you from allegations of discrimination based on race or some other protected characteristic.
Recent case: Kunle Ade, who is a black man of Liberian descent, worked for a private charity that serves mentally ill children and teens. The organization has a progressive discipline program.
It also has rules against harassment, and when Ade was implicated in several cases of co-worker harassment and inappropriate conduct, he was fired.
The first incident involved a complaint that he had commented on a co-worker’s breasts. Another time, Ade pushed a co-worker while they were arguing about the woman’s practice of feeding stray cats near their workplace. That time, Ade was warned that any further inappropriate conduct of any type would result in termination.
The last straw came when another co-worker accused Ade of climbing on top of her, grabbing her breasts and trying to kiss her. She screamed and he allegedly placed his hand over her mouth. The organization immediately suspended Ade and then fired him following an investigation.
He sued, alleging that a white employee who had also sexually harassed co-workers hadn’t been terminated.
But the charity explained that the white employee’s misconduct did not involve physical contact, but was limited to suggestive e-mails. The court said the conduct wasn’t similar enough to infer bias and dismissed Ade’s case. (Ade v. Kidspeace, No. 10-1868, 3rd Cir., 2010)