Sometimes, it seems as if everyone belongs to some protected class, or a combination of classes. Age, race, national origin, sex and disability are only a few possible classes.
Since any disparate treatment for the same rule violation may trigger a discrimination lawsuit, HR should be prepared to show that no employee in any particular classification is singled out for more severe punishment. Given the number of possible combinations, that’s a difficult task.
The simplest solution is to check proposed discipline against prior disciplinary actions for the same conduct. If everyone is treated equally, there’s no discrimination. And the only way to know for sure is to compare punishments.
Recent case: The Lake Worth Police Department fired Ralph Brillinger, who was a sergeant over age 40, after he was accused of falsifying pay records. The department claimed it caught Brillinger and several other police officers putting in for overtime hours they didn’t actually work. It terminated each officer. Brillinger also had a long history of disciplinary actions for just this sort of thing.
Brillinger sued, alleging he had been targeted because of his age. But he couldn’t show that anyone else was treated differently for the same offense. The department fired the others—who also falsified their records—and there was no one in the department who had not been fired for similar acts with similar past conduct. (Brillinger v. City of Lake Worth, et al., No. 08-10020, 11th Cir., 2008)
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