The key is consistency: Make sure similar infractions are subject to similar punishment

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in Discrimination and Harassment

Employees who break rules usually expect to be punished. But they also expect to be treated fairly. Most understand that employers shouldn’t punish one employee more harshly than someone else who committed the same infraction.

And if that other employee belongs to a different protected class, savvy employees know that attorneys will be lining up for a chance to file a discrimination lawsuit.

Recent case: Sharon Mercer, a black woman, is a police officer with the North Carolina Department of Motor Vehicles. One day she left her pistol in the restroom at work. She soon realized it was missing and returned to retrieve it. By then, someone had already found it and turned it in.

Mercer was originally fired for failing to secure her weapon, but that punishment was reduced to a short suspension. Then she discovered that a male colleague’s gun had been stolen (and traded for drugs) after he failed to secure it. He wasn’t suspended.

She sued, alleging sex and race discrimination.

The court said her case should go forward, based on the fact that she was punished more harshly by the same supervisor for the same offense. (Mercer v. North Carolina DOT, No. 5:09-CV-379, ED NC, 2011)

Final note: You can punish someone with a long disciplinary history more severely than other employees with clean records. Plus, you can use differing details about particular rules violations to justify punishment. After all, details show the employees weren’t similarly situated.

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