One of the quickest ways to litigation is to punish members of a protected class (e.g., race, national origin, disability) more severely than other employees for the same rule infraction. But that doesn’t mean you can’t justify a different punishment in some cases.
The key is making sure you can support your decisions to deviate with good, solid evidence that the punishments fit the crimes. For example, you can certainly punish egregious sexual harassment more harshly than a one-time incident.
Recent case: Capt. Marcos Perez, who is Hispanic, was suspended for 60 days from his job at the Depart-ment of Corrections after a co-worker claimed Perez had sexually harassed her for about two years. A lower-ranking lieutenant was suspended for just five days for violating the same rule against “unprofessional conduct.” The lieutenant is not Hispanic.
Perez sued, alleging discrimination based on national origin. He reasoned that if both men broke the same rule, the punishment should be the same.
The 7th Circuit Court of Appeals disagreed because the second employee was of lower rank and an investigation showed his misconduct involved a single consensual embrace at work. Perez, on the other hand, was accused of a long list of harassing acts. The court ruled the employer could mete out different punishments. It didn’t matter that the rule both individuals broke was the same one. What mattered was the underlying conduct and their rank. (Perez v. State of Illinois, No. 05-4591, 7th Cir., 2007)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Make sure you can track when downsizing decision was made
- Employee doesn't have to be a minority to file a racial harassment complaint
- Never let fired employee unfairly blame bias; be prepared to prove performance deficiencies
- Watch out for retaliation—even if employee never made formal discrimination complaint