Here’s an important reminder for HR professionals and managers who must investigate employee misconduct and decide on appropriate discipline. Don’t forget to provide a detailed account of what happened, whom you interviewed and how you arrived at an appropriate punishment. Make sure similar misconduct results in similar consequences.
That way, you will be ready if a disciplined employee sues, alleging discriminatory treatment.
Recent case: Carlos, who is white, worked as a deputy for Harris County. He allegedly approached a female dispatcher and told her that she could “have bigger breasts.” She complained, reporting that she felt humiliated by the comment.
Harris County had a sexual harassment policy that forbid “commenting about an individual’s body or appearance where such comments go beyond mere courtesy, telling ‘dirty jokes’ that are clearly unwanted and considered offensive by others, or any other tasteless, sexually oriented, comments, innuendoes or actions that offend others.”
Following an investigation that confirmed both the comment and that Carlos admitted he had made it, Harris County terminated him.
He sued, alleging that black employees who committed the same offense weren’t fired.
But the county showed the court that those employees hadn’t broken the same rule or had quit before being fired. For example, one employee had helped a nonemployee carry her groceries and another had asked a nonemployee out for coffee. Neither violated the sexual harassment policy.
In yet another case involving a black co-worker, the allegedly harassed employee had refused to officially complain, so the supervisor who handled Carlos’ case never knew about the incident. He therefore didn’t have an opportunity to discipline that employee for allegedly breaking the sexual harassment policy.
The case was dismissed. (Glaskox v. Harris County, et al., No. 12-20678, 5th Cir., 2013)
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