Fairness and equal treatment are basic tenets of the HR profession. But that doesn’t mean all discipline cases merit equal punishment, even if the offenses are superficially similar.
You can—and often must—punish some rule breakers more severely than others. Just make certain you can justify the differences. That is, keep careful track of all the rules, who the rule breakers are and what their punishments are. Chances are no two people break the same rule in exactly the same way. Your judgment as to what punishment fits the crime is likely to be upheld by a court—if you can clearly explain and justify how you arrived at the decision.
Recent case: Police arrested Jermaine Simmons, who is black and worked for a private prison facility, for driving under the influence. He pleaded guilty, lost his license and was placed on unsupervised probation for one year. Simmons didn’t tell his supervisor about the arrest or guilty plea.
The same year, a traffic officer arrested a white co-worker of Simmons and charged her with failure to obey. The co-worker paid a fine and reported the incident to her supervisor.
The private prison had a clear policy requiring employees to report all arrests. The policy called for evaluating the seriousness of each incident on a case-by-case basis.
Since the white co-worker reported her arrest and wasn’t jailed or put on probation, the HR office didn’t punish her. But when it found out about Simmons’ legal problems, it fired him for not reporting the arrest in the first place and for committing a serious offense. He sued, alleging race discrimination.
The court didn’t buy Simmons’ attempt to compare his conduct to the co-worker’s. The employer was free to treat the two differently. (Simmons v. The G.E.O. Group, No. 2:05-CV-40, ED NC, 2007)
- Never let fired employee unfairly blame bias; be prepared to prove performance deficiencies
- At Akron's Summa Health, where there's smoke, there's no hire
- Hiring consulting firm to work on site? That cuts your harassment liability
- Suit: Lawmakers discriminated when they fired transsexual
- Unable to work, ineligible for FMLA? You may be able to fire