Employers know they are not supposed to discriminate against employees based on protected characteristics such as race, age or sex. But HR can’t be everywhere, and in large organizations, it may be hard to monitor equal treatment.
If you don’t, though, you may find yourself deep in a discrimination lawsuit.
Tip: A centralized discipline-tracking system can help you check for possible hidden discrimination by comparing proposed discipline against past discipline. For example, if your organization routinely goes back two or three years to check for misconduct when deciding whether to terminate an employee, you should have ready access to the disciplinary history for other employees doing the same job who were facing discipline.
Recent case: Marcus Lee, who is black, was terminated from his job as a train engineer for a moving violation. He failed to call the dispatcher before backing up his train and failed to see the signal indicating there was another train on the track.
Before discharging him, the railroad company went back three years to review his disciplinary record and determined this was his second serious offense in a short time.
Lee sued, alleging race discrimination.
He pointed to another engineer who is not black who had been fired but then reinstated after the same violation. It turned out that engineer had a similar past disciplinary history.
That was enough for the 5th Circuit Court of Appeals to reinstate Lee’s lawsuit, which had earlier been dismissed. (Lee v. Kansas City Southern, No. 08-3044, 5th Cir., 2009)
Final note: Don’t have a sophisticated system for tracking discipline? Set up a spreadsheet that includes all the relevant information so you can easily compare employees. And remember that everyone belongs to a protected class, so treating everyone the same is crucial.
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- When discrimination charges are possible, investigate thoroughly before firing