Track all disciplinary actions to head off disparate-Treatment claims

When employees sue under the employment discrimination laws of Ohio, they often allege disparate treatment and try to show their employer treated members of their protected class (e.g., age, race, sex) more severely than other employees.

The key to a good defense lies in tracking each and every disciplinary action when it occurs. That way, you can easily slice and dice the information to show, for example, that the company disciplined white employees the same as black employees.

Plus, you can look for patterns. If there is a difference in how employees are disciplined, you can address the issue before someone sues.

Recent case: Shirley Mosley, who is black, lost her job at a nursing home for failing to follow the employee handbook’s procedure for calling in to say she would miss work.

The handbook says two no-calls or no-show incidents are cause for dismissal. The policy requires employees to give two hours’ notice if they are unable to work a scheduled shift. Later notices count as no-show incidents.

Mosley sued, alleging white employees were treated more leniently. But the nursing home carefully tracked all call-offs and could easily show there was no difference in how it punished white employees. (Mosley v. Miami Shores, No. 21587, Court of Appeals of Ohio, Second Appellate Division, 2007)