When it comes to discipline, the Devil is in the details. Even when two or more employees break the same rule, each may not deserve the same punishment. But if you don’t document why each case is different, a judge or jury could decide that discrimination was your motive for punishing one employee more severely.
To avoid that problem, always carefully document your decision, including mentioning any past discipline you think warranted more severe punishment.
Recent case: Kevin, who is black, was a security guard. He was caught sleeping on the job, but only received a warning. Later, he was promoted. Then he was caught sleeping again and suspended for a day. The third strike came when he fell asleep in his truck in the parking lot. He was fired.
Kevin sued, alleging race discrimination. He pointed to other employees he claimed hadn’t been fired for the same violation.
But three of the employees he named had violated an attendance policy. Another, who was white, actually was terminated for sleeping on the job, just like Kevin. Another employee who wasn’t fired worked for a different supervisor. Thus, the court said, Kevin had no case. (Carter v. Midway Slots, et al., No. 12-4092, 3rd Cir., 2013)
Final note: Create a disciplinary decision form that lets you explain the factors you considered. Always check past forms to see if similar behavior resulted in similar punishment regardless of protected status.
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