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Track discipline by type and protected characteristics

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in Employment Law,FMLA Guidelines,Human Resources

Do you have ready access to your organization’s discipline records? Can you say with certainty that everyone charged with the same misconduct receives the same punishment? Or is there bias hiding in those records?

The best way to check is to group discipline by type of misconduct and punishment and then compare employees’ sex, race, age and other protected characteristics against punishment for the same conduct. That way you can readily show the EEOC or state or local discrimination agencies the truth. The result: Case dismissed.

Recent case: John South took time off under the FMLA when his doctor said he had attention deficit hyperactivity disorder. Before he returned, his employer asked for a medical certification showing he could handle his job as a chemist, which required attention to detail and the ability to concentrate.

South refused to sign a full medical release and was fired for insubordination. Although he was later reinstated after filing a union grievance, he still sued for retaliation. His claim: that the discharge was retaliation for filing an unrelated EEOC complaint two years earlier.

But his employer’s good records meant he could not find someone similarly situated (who had refused to sign a release) who had been treated better. That sank his case. (South v. Illinois Environmental Protection Agency, No. 05-3621, 7th Cir., 2007)

Final note: Although this employee didn’t sue under the ADA, he could have. But his employer would still be entitled to enough information about his condition to help decide whether he was disabled and what accommodations, if any, were possible.

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