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Track complaints, punishment by protected characteristics

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in Discrimination and Harassment,Human Resources

When it comes to discipline, equal is better. Don’t treat one employee more harshly than you would another, but don’t shy away from punishing employees who deserve it either. The key is to track complaints and punishments so you can easily show that race, age, sex or some other protected characteristic had no influence on your disciplinary decisions.

Recent case: Jane Bentley, who is black, was suspended without pay from her deputy sheriff job after getting into numerous arguments with co-workers, members of the public and supervisors. The sheriff’s department ordered her to undergo six months of psychotherapy before returning to work.

Instead, Bentley sued, alleging race and sex discrimination. But she couldn’t show that anyone outside her protected class (a male, white or Hispanic employee, for example) had been punished differently for similar conduct. Indeed, the sheriff’s office was able to show that Bentley had a history of arguing, and that co-workers and members of the public regularly complained about Bentley’s rudeness and angry outbursts.

Because the sheriff’s department could show it had a good reason for its actions and hadn’t singled out Bentley based on sex or race, the court tossed out her case. By keeping careful records, the employer was able to get the case resolved before trial, saving itself considerable legal fees. (Bentley v. Atlantic City, No. 05-2942, DC NJ, 2007)

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