It seems like some lawsuits come out of nowhere. You simply can’t predict who will sue. But you can take steps to ensure that most employee lawsuits will fail, especially when it comes to discipline.
The key is to make sure similar misconduct yields similar punishment, regardless of the employee’s race, sex, age or other protected characteristic. It’s also critical for HR to track discipline carefully and insist on reviewing all serious cases that may result in a demotion, transfer or termination.
If you do have a good reason for issuing different punishments, make sure you put those reasons in writing. If you can explain why the situations aren’t the same, you will be in the clear.
Recent case: Milton Luster, who is black, worked for the Illinois Department of Corrections. At one point, he had an affair with co-worker Christine Cole, who is white.
During one fateful shift after their affair had ended, Luster, Cole and several other co-workers were discussing the origins of prunes. Luster insisted that prunes came from grapes and said he’d be willing to bet on it. Cole insisted that dried grapes make raisins, not prunes, and added, “Then get your check out, bitch, cuz you lost.”
Luster got angry and complained tothat Cole was insubordinate when she called him a “bitch.”
Cole then told management that Luster had pinned her against the wall during an earlier shift and kissed her on the neck, leaving a mark. She also said he had touched her buttocks. Plus, she said he called her at home, made suggestive remarks and sometimes showed up at her house uninvited even though she told him to stop.
Cole was criticized for calling Luster a “bitch” and for not reporting the harassment earlier.
Luster was placed on paid administrative leave. After an investigation, the department recommended termination for Luster. He got a letter informing him that he would be terminated in 30 days unless he filed a grievance.
He quit and sued instead, claiming he was a victim of race discrimination. As evidence, he pointed out that a white co-worker who had also been suspended for alleged sexual harassment was not, in fact, terminated.
The department explained to the court that the white employee wasn’t fired because he filed a grievance and managed to persuade his employer that he should get another chance. Luster never bothered trying to save his job.
The court said that meant the two were not similarly situated and Luster couldn’t compare himself to the white co-worker. (Luster v. Illinois Department of Corrections, No. 09-4066, 7th Cir., 2011)
Final note: Your disciplinary system doesn’t have to be set in stone. You can change it. For example, if you reviewed prior disciplinary action against those using slurs in the workplace and discovered that reprimands weren’t effective in preventing further trouble, you could certainly increase the punishment. As long as you can justify the new policy going forward, you shouldn’t have any problems. The same is true if it turns out the punishment was too harsh. Just be able to clearly explain the deviation.
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