You have no doubt heard that employees who break the same rule should receive the same punishment. That’s true in most circumstances. However, nothing prevents employers from treating similarly situated employees differently if the facts warrant it.
In those cases, however, details matter. As long as you can document why one employee deserves harsher treatment than another, it’s OK to discipline them differently.
Recent case: Theresa, a manager over age 50, and two younger male managers were told not to involve a fourth manager in a particular work project. All apparently ignored the order. When the managers were caught, the company investigated and concluded the three should be reprimanded. But then HR reviewed phone records and concluded that Theresa had lied during the investigation about whom she had talked to and when she talked to them. She was terminated for lying.
Theresa sued, claiming age and sex discrimination since the younger, male managers were only reprimanded.
The court tossed out her case. It reasoned that her employer had the right to punish her more severely if it believed she had lied during the investigation. (Taddeo v. L.M. Berry and Company, No. 12-3591, 2nd Cir., 2013)
Final note: The key is careful documentation. No one remembers exactly what happened years ago. Employees retire, quit and move away.
When investigating wrongdoing, take notes during or right after your witness interviews. Always document phone calls, and retain email and text messages. When you reach a conclusion, note it and keep the documentation.
Business documents may speak for themselves if they were routinely made and kept. At the very least, you will be able to use the notes to refresh your memory should you later have to testify under oath about the investigation.
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