Employees who are fired frequently sue, alleging some form of discrimination. Most of the time, they try to argue that someone outside their protected class was treated more favorably than they were. Given the number of protected classes (e.g., sex, disability, race, religion, nationality), it often isn’t hard to find someone to compare oneself to. The fired employee may say, for example, that she was treated differently than her male co-worker who allegedly committed the same workplace offense.
Smart employers keep careful track of all disciplinary actions and use progressive disciplinary programs to differentiate among employees. For example, it becomes much easier to defend against a discrimination claim if you can show that the terminated employee broke a series of rules over a long period of time, and the person she wants to compare herself to broke one rule, one time.
Recent case: Tracey Caskey worked for Hill’s Pet Nutrition on the production line. She operated an extruder, which is a piece of heavy equipment that pushes unprocessed dog food through a grinder and then slices the food into smaller pieces known as “kibbles.”
Caskey was frequently absent, and the company had a system that placed problem employees on an Individual Improvement Process plan for various offenses. Caskey was on the plan for several unexcused absences when she slipped and fell. Supervisors said she acted in an unsafe manner.
Then, during Caskey’s shift, the machine malfunctioned and cut the kibbles into the wrong size. The company placed Caskey on the final stage of the disciplinary program and told her she could have no more incidents. Then she missed work without an excuse and was fired.
Caskey sued, alleging that male employees who had also let the machines malfunction weren’t placed on the final disciplinary stage. The court rejected that claim, reasoning that the males didn’t have her lengthy disciplinary history. The company was free to treat her differently. (Caskey v. Hill’s Pet Nutrition, No. 06-2929, 7th Cir., 2008)
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