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Better be prepared to justify unequal treatment

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in Discrimination and Harassment

There are times when management feels compelled to treat some employees differently than others. That’s fine—as long as you can explain why and your explanation makes it clear that race, age, sex or some other protected characteristic wasn’t the reason.

Recent case: Frederick Livingston, who is black, is a police officer. Follow­ing allegations that he sexually abused one of his daughters, he was charged with rape, statutory sexual assault, incest, endangering the welfare of minors and other charges. While the case was working its way through the criminal justice system, the police department suspended Livingston.

A jury acquitted Livingston of all charges against him. Within days, he was reinstated to his job and received full back pay.

However, while he was suspended, several programs he had been responsible for were either eliminated or reassigned to others. Livingston was then assigned to programs he considered less prestigious, such as preparing drunken-driving prosecutions and working on abandoned-vehicle cases.

Livingston filed an EEOC complaint, alleging he was being discriminated against because of his race and had to work in a hostile work environment. Essentially, he argued that no one treated him the same after his acquittal as they had before his arrest.

But the court ruled Livingston didn’t show that race had anything to do with his treatment. Namely, he could point to no other non­black officer who had been acquitted of similarly serious charges who had been treated more favorably after returning to work. The court said the real reason for the difference in pre-arrest and post-acquittal treatment might have been the nature of the charges—but that wasn’t based on race. (Livingston v. Borough of Edgewood, No. 10-4455, 3rd Cir., 2011)

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