You can justify differing discipline for similar conduct
Some employers believe that if several employees break the same rule, they must be punished exactly the same. That’s true—to a point.
You can discipline one employee more harshly than another if you can show why you believe their conduct wasn’t so similar after all.
Recent case: Tiffany Davis, who is black, was suspended from her cell phone sales job after she admitted being involved in a scheme to resell returned phones to drive higher commissions. A white man who was also involved was not suspended.
When Davis sued, her employer explained that her punishment was harsher than the white man’s because she profited from the scheme. The man didn’t.
The court said the company showed it disciplined Davis differently because her conduct was different. (Davis v. Cleveland Unlimited, No. 2:09-CV-1106, SD OH, 2011)