If yours is like most organizations, you probably make new employees serve a probationary period. It can provide insight into the new employee’s ability, attitude and how well he or she fits in.
During probation, you can hold new employees to a higher standard than established employees. For example, you can fire a new employee for a transgression but levy a lesser penalty for the same conduct on established employees. That’s because in a discrimination lawsuit, the terminated employee must show being treated differently than other employees outside his or her protected class (i.e., race, sex, etc.). But those other employees also must be probationary employees. That’s the legal system’s way of comparing apples to apples.
Recent case: Rose Catanzaro, who is white, accepted a job as a police communications officer shortly before the 2004 hurricane season. Catanzaro was still on probation when Hurricane Ivan was gathering force. That’s when the police chief ordered “all hands on deck” and cancelled vacation and personal leave.
Catanzaro was off the day the chief ordered everyone to work 12-hour shifts for the duration of the approaching storm. But she refused to report for work and instead evacuated her daughter inland. She was fired for insubordination. Two other probationary employees and five permanent employees also didn’t show up for work. The probationary employees were fired, but the others were either suspended or demoted.
Catanzaro sued, alleging she was treated unfairly because she was white. But the 11th Circuit Court of Appeals tossed out her case. It concluded probationary employees could be treated differently from permanent employees, and it saw no discrimination. (Catanzaro v. Alabama Port Authority, No. 06-16225, 11th Cir., 2007)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- It's time for a pay discrimination self-audit
- On references, mum's usually the word, but sometimes honesty is the best policy
- Beat discrimination lawsuits by nailing down specific rationale for employment decisions
- Rescind firing ASAP to end discrimination suit