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Employers can and should decide each employee discipline case on its own merits. Just make sure someone in HR or a supervisor keeps close tabs on all discipline and documents the decision. Notes should include specifics: the rule broken, its effect and its relative seriousness.

The fact is, courts rarely second-guess disciplinary decisions by ruling that one offense is worse than another. They leave that to the employer’s sound business judgment—as long as those who break the same rule are treated similarly. Otherwise, an employee who belongs to a protected class may claim others not in his class were treated more favorably than he was.

Recent case: Brennan Morrison, who is black, managed a pool for a community college and had performance problems. His supervisors said he failed to submit timely and accurate time sheets, made unauthorized changes to his work hours, didn’t turn in leave slips and generally didn’t follow the rules. The college finally fired him after his performance didn’t improve.

Morrison sued, alleging race discrimination and retaliation. He pointed to two other employees, neither of whom is black, who were not disciplined for allegedly violating rules. One was not punished for watching porn at work, and another was not punished for falling asleep while on the clock.

But the court said neither employee was similarly situated. Plus, the rules they broke were very different. The court said Morrison wasn’t allowed to use those employees as examples of favorable treatment and ruled in favor of the college. (Morrison v. Dallas County Community College, et al., No. 07-10917, 5th Cir., 2008)

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