Do you have a zero-tolerance policy for? That doesn’t mean you have to fire everyone who violates the letter of the rule. You can use some discretion, as long as you document why.
Recent case: Pavel was born in the Soviet Union, and is a legal U.S. resident. He worked the night shift in a U.S. Foodservice warehouse, where he filled orders.
One night, he allegedly screamed profanities and racial slurs at a black employee from West Africa who did not understand much English. Pavel also pushed him. The employee was in tears and his co-workers complained about how he had been treated. The company investigated and fired Pavel for violating its no-violence policy.
Pavel sued, alleging national-origin discrimination. He claimed that a non-Russian employee kept his job even though he brought a gun to work, which also violated the policy.
But U.S. Foodservice explained why it didn’t fire the gun-toting employee: He was licensed to carry the weapon and apparently forgot he had it with him when he arrived at work. He immediately went to and explained the situation. At no time did he threaten anyone or even show the gun.
The court said that Pavel’s behavior was different and the employer was within its rights to punish the two differently. It dismissed the case. (Ignatenkov v. U.S. Foodservice, No. 1:11-CV-232, SD OH, 2012)
Final note: The key is to carefully document violent incidents and apply the facts to the policy. In this case, Pavel’s behavior clearly was more immediately dangerous. Plus, he exposed his co-worker to slurs that could have created a racially hostile work environment. That was true even though the West African employee may not have understood exactly what names he was being called or why.
- Employer's extortion ignites wrongful discharge claim
- Under what circumstances can an employee challenge a termination?
- Annual checkup: Your top 10 employment law to-do's in 2010
- The whole truth: Discrimination costs Philips Lighting $164,850
- When misbehavior demands termination, it's best to stick with one reason for firing