When it comes to discrimination, your best defense is treating everyone absolutely equally. That’s tough to do without a central HR tracking system.
It doesn’t have to be complicated. Make sure you note any problems (and praise) in each employee’s official file. Then, do regular audits—pulling out data on age, sex, national origin and race—to tabulate types of problems and any discipline levied.
The tally will flag any suspicious patterns an attorney would love to get his hands on—such as more severe discipline for employees of one race over another. In addition, a good tracking system will help you recommend discipline appropriate to each case.
Recent case: Leonard Kimble, who is black, was passed over for a promotion despite generally good evaluations. But Kimble’s supervisors noted three separate complaints in the few months before a white co-worker was promoted to a position Kimble wanted. The co-worker had none in his file.
Then Kimble was promoted and transferred to another location. However, he received a warning for refusing to come in after hours. The company fired Kimble when he again didn’t accept an after-hours call.
Kimble sued, alleging race discrimination as the reason for being passed over for promotion and for his discharge. But the company had files showing the co-worker had a better disciplinary history, plus Kimble had disobeyed company rules. That persuaded the jury there was no discrimination. The 3rd Circuit Court refused to reinstate the case. (Kimble v. Morgan Properties, No. 05-5232, 3rd Cir., 2007)
Final note: Make sure files on each employment decision—including promotions, raises and transfers—include specific references to any problems or praise used to support the decision. To a jury, a dated page from the employee’s file is much more powerful than a supervisor’s “remembered” testimony.
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