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Factor past discipline into firing decision

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in Discrimination and Harassment,Human Resources

Employees fired for violating workplace rules can still sue over some alleged form of discrimination, even if they were indeed guilty of breaking company rules. That’s true, for example, if the fired worker can prove that a similarly situated co-worker outside his protected class (i.e. younger, not disabled, a different race) was not fired for breaking the same rule.

Be ready to counter such allegations by always documenting exactly why you determined the employee should lose his job.

You can do this, for example, by citing prior rule violations to show this wasn’t the first strike.

Recent case: Harvey was over age 70 and had a hand tremor that he claimed was a disability. He worked as an MRI technologist. One of the rules all MRI techs had to follow was to check whether a patient had any metals present in their body before running an MRI. That’s because fatal injuries may result.

Twice, Harvey was reprimanded for missing metal. Then, a third patient underwent an MRI despite having a pacemaker in her body. She survived, but Harvey was fired for not properly screening the patient.

Harvey sued, alleging age and disability discrimination. He claimed two younger, nondisabled employees broke the same rule and were not terminated. But none of them had broken the rule three times. That distinguished them from Harvey.

The case was dismissed. (Hoff­­man v. Baylor, No. 14-10258, 5th Cir., 2015)

Final note: Create your disciplinary paper trail before making the final discharge decision, not after. Date-stamp documents or mark them with the date of the rule violation and the disciplinary action. You can’t go back and back-date earlier discipline without looking like you are trying to justify discrimination.

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