Here’s some advice on creating good disciplinary records: When employees break the same or similar rules but end up with different discipline, make sure your records specify why you believed one deserved harsher punishment than another.
While you don’t (and likely shouldn’t) share the rationale with the employees, including it in the file will help in case of a lawsuit. You will be able to explain your decision clearly.
Recent case: Carl, who is black, was fired from his job for allegedly taking company property home for his personal use.
He sued, alleging discrimination. He pointed out that two Hispanic employees who allegedly broke the same rule weren’t fired.
But the employer was ready to explain why Carl’s actions and the resulting discipline weren’t comparable to the Hispanic workers. For one, the company said, the Hispanic employees were managers and had been accused of not supervising their subordinates closely enough so that they, too, took home company property. That, reasoned the company, warranted different discipline.
The court agreed that Carl couldn’t compare his situation with the supervisors’ situation. They not only held different positions, but their “guilt” was of a different kind—they were poor supervisors. (Greene v. Virgin Islands Water and Power, et al., No. 13-2499, 3rd Cir., 2014)
Final note: Judges understand that different supervisors may see discipline differently. That doesn’t mean one boss is biased while another isn’t. That’s why generally judges only compare discipline meted out by the same supervisor. However, employers are still responsible for ensuring that all supervisors fairly administer the company’s rules, within reason.
HR should monitor discipline and make note of any patterns that single out members of a particular protected class for harsher discipline for similar behavior.
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