In the real world, there are different consequences for acts that have the same effect. For example, a driver who kills a pedestrian while drunk probably faces harsher punishment than someone who fell asleep at the wheel. And someone who intentionally hits a pedestrian likely will face the most serious consequences.
It’s the same with employees who break rules.
Yes, employers generally must treat employees equally, including when they break the rules. But that doesn’t mean you have no disciplinary flexibility.
The key: Explain why you think one employee deserves more serious punishment than another who committed the same infraction.
Recent case: Benjamin Floyd, who is black, was fired from his FedEx job after witnesses claimed they saw him push a white co-worker. FedEx fired him under its acceptable conduct rule, which included a long list of conduct ranging from theft and fraud to violence.
Floyd claimed that the man he allegedly pushed had also violated the same conduct rule by telling Floyd that he was a “sorry m***** f*****” and “lazy” and then wagging his finger in Floyd’s face. The man wasn’t fired, but merely reprimanded.
When Floyd sued for discrimination, FedEx argued that while both men technically broke the acceptable conduct rule, their infractions were not equal. One involved name-calling while the other involved violence. The court agreed and dismissed the case. (Floyd v. Federal Express Corporation, No. 10-12463, 11th Cir., 2011)
Final note: Don’t be too specific in your employee handbook and rules. Aim for flexible language that allows for novel conduct. For example, a conduct policy that doesn’t mention a prohibition against bringing guns to work but does prohibit threats, violence or acts that create fear would allow disciplining the gun carrier.