Have you found that some of your disciplinary rules are too lenient? Don’t hold back on stiffening your rules just because you fear the first employees subject to harsher penalties might sue you.
They won’t be able to compare their discipline to that handed out in the past to show discrimination.
Recent case: Sergio was fired for testing positive for narcotics during a random drug test at work.
Shortly before the test, his employer had instituted a new rule that called for terminating employees who could not produce a prescription for prohibited substances when they tested positive.
Sergio, who is Hispanic, sued, alleging that before he was terminated, two other employees also tested positive for drugs or alcohol but kept their jobs. He reasoned the real reason he was singled out was his Hispanic origins.
But the employer explained that one of the earlier cases happened more than a decade earlier, long before the new rule went into effect. The other incident wasn’t even similar, since the employee in question actually did not test positive for drugs or alcohol.
The court dismissed Sergio’s lawsuit. It reasoned that, since the rules had changed, none of the other employees Sergio wanted to compare himself with was similarly situated. And even if the rules hadn’t changed, it still would not have allowed a decade-old decision as a comparison. (Cardiel v. Apache Corporation, 13-10646, 5th Cir., 2014)
Final note: Judges understand that employers sometimes need to change the rules. They won’t hold such changes against you as long as you apply the new rules consistently across the board going forward.
Just make sure you can show when you changed the rule and exactly what you changed.
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