If you had to, could you quickly produce records showing that every employee who broke the same rule received the same punishment? Would you be able to readily explain any deviations?
If you hesitated when answering these questions, it’s time for action. Conduct an audit by going through your disciplinary records. If the same violation earned the same punishment, you’re fine.
But if you discover differences, check whether members of different protected classes were treated more leniently or more harshly than others. If so, are there neutral, business-related reasons for the disparities? Then note them.
In the future, ensure you make consistent decisions. Also, check with your attorney to determine whether you should modify past disciplinary actions, or whether enough time has passed to make doing so irrelevant.
Recent case: Jaynord, who is black, worked for Resort Lifestyle Communities as a morning cook. The company required all employees to call in well before their start time if they were going to be absent due to illness or other unforeseen events. Jaynord was absent for four days and never called in. Resort Lifestyle fired him for violating the call-in policy.
He sued, alleging race discrimination.
But in court, the company showed that it had fired other employees—some of whom were white—for breaking the same rule. Jaynord didn’t have any other evidence that race had ever affected his employment. He never heard racial slurs or felt thatdiscriminated against him, other than when he was fired. His case was dismissed. (Washington v. Resort Lifestyle Communities, No. A-11-CV-407, WD TX, 2012)
Final note: Jaynord also told the court that he believed he had been fired on account of his sexual orientation. But since neither Title VII nor Texas state law protects employees from sexual-orientation discrimination, he had no case.