The cardinal HR rule is that employees who break the same rule should receive similar punishments. That doesn’t mean, however, that you have no flexibility if the circumstances warrant it.
You just have to make sure you can justify why you disciplined one employee differently than another. Document the facts that led up to the decision so you can explain why you chose the discipline you did.
Recent case: Randy Jones, who is white, worked as a lineman for an electric utility. He also ran a side business.
One of the people who worked for Jones’ business fell behind on his electric bill, and the utility disconnected his service. Jones told the man he would lend him the money to pay the bill.
Then Jones explained the plan to a co-worker at the electric company. He asked the co-worker, who is black, to erase the termination order from the computer system, which the co-worker did. Jones then reconnected his employee’s power and boasted that he had just saved the man the cost of a reconnection fee and new deposit.
The electric company’s rules included punishment up to termination for tampering with a service account or reconnecting service without company authorization. On those grounds, the company fired Jones. Meanwhile, the black co-worker’s involvement came to light. But the company merely disciplined him for his part in erasing the disconnection order.
Jones sued for race discrimination.
The 11th Circuit Court of Appeals dismissed the case. It reasoned that the utility could elect not to fire the co-worker because he was less involved and hadn’t stood to gain anything personally, while Jones did far more. In addition, it noted that Jones had been cited for breaking many rules before, while the black co-worker had a clean disciplinary record. (Jones v. Alabama Power Company, No. 07-15818, 11th Cir., 2008)
Final note: Make sure you can show the factors you considered before you made the final decision. You can’t after the fact use past disciplinary history to justify the different punishment. Date everything.
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