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Employees fighting? Punish everyone equitably—or be prepared to explain why not

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in Discrimination and Harassment,Firing,Human Resources

If a fight breaks out at work, make sure you punish everyone involved in the incident according to his or her level of involvement.

Don’t terminate one employee and suspend the other unless you have a very good reason for the different treatment. Widely varying discipline invites a disparate treatment lawsuit if the terminated employee belongs to a protected class and the suspended employee does not.

Recent case: Crystal Dutton worked for Penske Logistics, a trucking company. She complained frequently that supervisors and co-workers slurred her and made harassing comments because she is a woman. Even so, she kept her job.

While visiting a facility, she got into a shouting match with a male co-worker whom she alleged was harassing her. Dutton fled to the ladies’ room and locked the door. The co-worker then allegedly tried to enter, and Dutton charged him, hitting him in the chest and kicking him in order to “dissuade his advance.” Penske fired Dutton and suspended the man.

She sued for sexual harassment and disparate treatment. Because she had waited too long to charge sexual harassment over the incidents that took place more than a year earlier, the court dismissed those claims. It did, however, allow her disparate-treatment claim involving the fight to go forward. (Dutton v. Penske Logistics, No. 07-CV-0410C, WD NY, 2008)

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