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Ad hoc second chances? See you in court!

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in Discrimination and Harassment,Human Resources

If you have a strict rule in place that calls for discharge for a specific offense, be careful before you make an exception for one employee.

If you do, another who doesn’t’ get a second chance may believe the real reason is some form of discrimination and point to the other employee’s race, ethnicity, sex or other characteristic different from his as proof.

Recent case: Gilberto, who is Hispanic of Mexican heritage, worked for a company that required random drug tests. A third-party administrator handled the details. Employees who tested positive for illegal substances were not eligible for work assignments.

Gilberto took a test and failed when his urine indicated the presence of marijuana. He told the testing company there was a mistake and offered to take another test. The company refused.

Gilberto then went elsewhere for another test, which came out negative for illegal substances, including marijuana.

He showed the results to management and argued that he was clean. At the time, he also complained that a co-worker had been allowed back despite a positive test.

Gilberto then sued, alleging that he had been treated more harshly because of his race and national origin.

He identified at least one other worker, who was not Hispanic, who had been allowed to undergo drug-abuse rehabilitation and was welcomed back to work within several weeks. He argued that he should have had that chance, too.

The court said Gilberto had enough evidence for a discrimination trial.

The fact that someone outside his protected class was treated differently was evidence of possible bias. (Rincones v. WHM Custom Services, No. 13-11-00075, Court of Appeals of Texas, 2015)

Final note: If you make an exception for someone, be sure to detail exactly why his or her case is unique.

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