When you’re disciplining an employee, you don’t have to go into every detail about why she is being punished one way when another employee was dealt with differently. However, if the employee ever sues you for discrimination, you had better be prepared to explain the difference later—in court.
That means you must document the reasons at the time you make the disciplinary decision. Otherwise, it may look like you fabricated a rationale after the fact, to hide discriminatory intent.
Recent case: Beverly Mentor, who is black, lost her job as a school bus aide due to budget cuts. Mentor was the last aide assigned to the school and therefore the first out the door.
She had been transferred there because of an incident at her former school in which she allegedly confronted a child she believed was bullying her daughter, who attended the school. The administration transferred her so she wouldn’t be in a position to take such matters into her own hands.
Mentor sued, arguing that her transfer to the new school—and thus her eventual job loss—had been tainted by race discrimination. She argued that other nonblack employees who had complained about their children’s treatment hadn’t been transferred.
But the school district pointed out that there’s a big difference between complaining and personally confronting a child about behavior. Had Mentor just complained to the principal, the district argued, she wouldn’t have been transferred. (Mentor v. Hillside Board of Education, No. 09-3637, 3rd Cir., 2011)