Here’s some good news for those worried about absolute fairness in discipline: You have more latitude than you may think.
Courts will use another employee’s lighter discipline as discrimination evidence only if the two employees being compared committed offenses of “comparable seriousness,” which generally means their wrongdoing was “nearly identical.”
Smart employers carefully document all discipline, making sure to include details that distinguish one employee’s actions from another’s. Of course, this does mean you have to keep track of all discipline in a centralized file and consult those records before punishing a worker.
Recent case: Tomasa, who is a Hispanic woman, worked as a school custodian. Sometime in 2010, another custodian put dirty mop heads in a dryer and they caught fire. Because of this accident,advised all custodians that they were not allowed to wash and dry dirty mop heads. Instead, mop heads were to be collected and brought to a central site for safe cleaning.
One day, some of the mop heads Tomasa had been using needed cleaning. When no one picked them up, she decided to wash them herself. She placed them in a school dryer—and, predictably, they caught fire. She was fired for violating the cleaning rule.
Tomasa sued, alleging that the non-Hispanic driver who was supposed to pick up the mop heads was only reprimanded, not fired.
The court tossed out her claim, concluding that the two employees didn’t commit “nearly identical” offenses. (Mesquite Independent School District v. Mendoza, No. 05-12-01479, Court of Appeals of Texas, 5th District, 2013)
Final note: It was irrelevant that both employees were disciplined over their handling of the same thing—dirty mop heads. Failing to collect them for cleaning wasn’t the same as violating a clear safety rule and causing a fire.