It’s hard to predict who will file a discrimination lawsuit and on what basis. After all, everyone belongs to at least one protected class.
A discrimination lawsuit compares what happened to the complaining employee with what happened to others outside his protected class. That means employers must be able to show either that both employees were punished the same way for the same act or were punished differently for a good reason.
Details matter. For example, an isolated instance of rude behavior is one thing, but constant rudeness is something else entirely. It can justify different, more severe punishment.
Recent case: Lee, a black doctor, had his hospital privileges revoked for poor patient care, as well as inappropriate behavior. Subordinates, patients and co-workers all complained tothat Lee was rude and generally disagreeable.
Plus he kept poor patient records.
Lee sued, alleging the hospital treated white doctors more favorably. He cited examples of white doctors who kept their privileges despite swearing.
After going over the hospital’s disciplinary evidence, the court dismissed his lawsuit. Lee had done more than utter the occasional profanity. He was the recipient of numerous complaints about both his behavior and the quality of his care. (Davis v. Jefferson Hospital Association, et al., No. 10-3858, 8th Cir., 2012)
Final note: Punishing an employee for allegedly poor behavior? Keep a list of specific examples. Such a subjective conclusion will be more credible in court if you can support it with well-documented underlying facts.
Cite what the employee did and when he did it. If subordinate or co-worker complaints prompted the discipline, be sure to note those particulars, too.