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Defend discipline with detailed records

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in Discrimination and Harassment,Human Resources

You discipline an employee for a serious rule violation, perhaps by firing the employee. Because you had good reasons for discharging the employee, you may think that you can’t be sued for discrimination.

That’s not necessarily true. An employee can still argue that he was treated unfairly and the reason was some form of discrimination. He may argue that he was singled out and that others outside his protected class weren’t fired for the same or similar conduct.

To counter that claim, you have to show that the others weren’t similarly situated. The best way is to provide detailed disciplinary records that show how different each situation was.

Recent case: Kenneth worked in a prison mental health unit as a detention officer. When he went to check on an inmate, he got into an altercation. He allegedly hit the inmate with his forearm, inflicting an injury that required 14 stitches. He was fired for violating a rule against the use of excessive force.

Kenneth sued, alleging that others outside his protected class were not fired for similar conduct.

But the prison was able to show that those other employees had committed far less-serious acts, even though their behavior might have seemed similar at first blush. For example, one employee drew a gun during a traffic stop, but did not use it or harm the driver.

The court tossed out Ken­­neth’s case, concluding that no one with a similar enough disciplinary history who belonged to another protected class had been treated more leniently. (Harris County v. Bankhead, No. 01-03-01005, Texas Court of Appeals, 2014)

Final note: You never know which employee will sue over discipline. Be prepared by compiling detailed notes about each incident at the time you discipline the worker.

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