If you want to streamline your employee manual and disciplinary process, you may be tempted to create one general misconduct rule. It might state, for example, “Violating company policies can result in discipline, up to and including termination.”
Such a rule would seem to be flexible and scalable, depending on the employee offense. (Of course, you would have to communicate those underlying policies to employees, probably also in the handbook.)
But before you adopt such a rule, make sure HR is ready to administer it. You’ll need clear guidelines for documenting all discipline and explaining why one employee was reprimanded and another was fired.
As they say, the devil is in the details—and those details belong in HR’s employee files.
Recent case: Cynthia Thomas, an older white woman, was terminated from her job at Humana Health for violating a policy known as the Humana Critical Offenses Policy.
Thomas sued, alleging that another employee—black and much younger—was merely reprimanded for violating the policy. This, Thomas argued, was race and age discrimination.
But Humana was able to show why it disciplined the two women differently. The black woman was alleged to have discussed confidential pay information. Thomas allegedly sent an email disparaging the company’steam, threatened and intimidated a co-worker and published information about a co-worker’s past drug use.
The court said the two women weren’t similarly situated because their conduct was quite different—different enough to justify terminating Thomas and reprimanding her co-worker for a single violation. Simply put, Humana believed Thomas was more worthy of termination. The court wasn’t about to interfere with that business decision. Courts are looking for discrimination, not trying to micro-manage businesses. (Thomas v. Humana Health Plan, et al., No. 10-15120, 11th Cir., 2012)
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