Employees who believe they have been disciplined more severely than co-workers may blame the disparity on some form of discrimination. They may think that their age, sex, national origin or some other protected characteristic is the real reason.
Even if you know you haven’t been biased, be prepared for the accusation. The best way to do that: Make sure you document exactly how you made your disciplinary decisions. Documentation should include the telling details that warrant more serious or less serious punishment.
That way, you can later explain why one employee was terminated while another was retained following what at first glance might look like the same offenses.
Recent case: Sylvia Summers worked as a police officer. One of her duties was to make sure she took care of post-arrest paperwork, including filling out warrants and arrest affidavits.
Summers arrested a suspect and took him to jail. But somehow, she never filled out the paperwork. The suspect sat in prison for 104 days before someone realized he was still there even though he hadn’t been officially arrested.
Later, Summers failed to process a parking ticket for over 30 days. She was terminated for the two violations.
Summers sued, alleging race and sex discrimination.
She located a white male police officer who happened to have arrested the same suspect for a different offense. That officer also hadn’t completed the necessary paperwork within the required two-day period, yet he wasn’t terminated.
The police department explained that the white male officer wasn’t disciplined as harshly because he did file the necessary paperwork within 13 days. In addition, that officer tried to take care of the paperwork, but couldn’t find a magistrate at the time. Summers never tried.
The court said that, while the two officers broke the same rule, their conduct wasn’t nearly identical. Summers’ conduct was more serious. It tossed out the case. (Summers v. Dothan, No. 10-15361, 11th Cir., 2011)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Employee is his own lawyer? Take case seriously, anyway
- Employee's discrimination complaint shouldn't derail legitimate discipline
- Under what circumstances can an employee challenge a termination?
- Aggressive defense makes short work of litigation