When it comes to discipline, equal treatment is the only safe way to go. Since you don’t know which employees might sue for alleged discrimination based on membership in a protected class, you must treat everyone the same.
That doesn’t mean, of course, that you can’t come up with different punishments when the circumstances warrant.
The key is to document why you punished one employee more severely for seemingly similar rule violations. To do that, point out why one case is different from another. In other words, explain why the violations weren’t the same after all. That’s what the employer did successfully in the following case.
Recent case: Markale Jackson, who is black, worked for Winn-Dixie and was transferred to another position after he failed to follow the store’s cash-handling procedure and ended up short $1,000. His new job didn’t involve access to cash.
Jackson sued, alleging that two white employees violated the same cash-handling procedure but weren’t transferred. This, he alleged, could only mean he was singled out because of his race.
But Winn-Dixie was prepared. It showed the court that it punished the three differently because their levels of responsibility were different. One of the other employees told his bosses he was never trained on the cash-handling process, so Winn-Dixie decided he shouldn’t be punished. The second white employee’s cash-handling mistake didn’t result in the loss of any money, but Jackson’s violation cost the grocer a bundle.
The court said that difference justified Jackson’s transfer out of a job where he had to handle cash and into one where he did not. (Jackson v. Winn-Dixie, No. 09-11137, 11th Cir., 2009)