Handbooks and disciplinary rules help managers mete out consistent and fair discipline. But no handbook or set of rules can cover every possible disciplinary problem, and supervisors need some discretion when deciding what punishment fits the crime.
The problem is that any deviation from the rules may be seen as discrimination if an employee who belongs to a protected class perceives that he has been punished more harshly than a co-worker who broke the same rule.
To counter this problem, tell managers and supervisors to document exactly how and why they arrived at a particular punishment. Have them include all relevant factors—in writing—such as past disciplinary history, whether this was the first or a subsequent violation of the same rule, etc. Then file the memo away, just in case of a later lawsuit.
Recent case: Johnnie Rogers, who is black, was fired for from his supervisory job with FedEx. His supervisor had issued three “performance reminders” to Rogers in the 12 preceding months. In one, the company said Rogers had failed to discipline one of his subordinates for losing his driver’s license.
Rogers sued, alleging discrimination.
FedEx explained to the court that its records showed Rogers had been “repeatedly disciplined by all his senior managers throughout his employment at FedEx.” It said Rogers had been on the cusp of discharge many times. Rogers tried to argue that other employees had been treated more leniently. He pointed to one nonblack employee who had not been punished for failing to discipline a subordinate whose driver’s license had been revoked.
FedEx pulled out its disciplinary records and showed that the two situations were not as similar as they might have initially looked. True, both Rogers and the other supervisor had failed to discipline a subordinate who lost his license. But there was a crucial difference: FedEx discovered the other employee’s mistake two years after it happened, but the employee had a clear disciplinary history after that. In contrast, Rogers was a constant disciplinary problem. The court said that difference was enough to justify firing Rogers but not the other employee. (Rogers v. Federal Express, No. 07-5176, 10th Cir., 2008)
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