• LinkedIn
  • YouTube
  • Twitter
  • Facebook
  • Google+

Ensure lack of clarity doesn’t cause liability

Get PDF file

by on
in Discrimination and Harassment

Rules that are unclear, vague or poorly worded can spell trouble if they end up being applied differently to some employees and not others. That’s one reason you should pay careful attention to the language in your policies.

Recent case: Hardy worked as a patient transporter until he was fired at age 73. The stated discharge reason was that he had violated a company policy by having three or more accidents within three years “of application.”

He sued, alleging age discrimination and pointing out that he had not actually had three accidents within three years of application. Three years had already passed when he had the accidents.

The court concluded the policy was clear—that the accidents had to occur within three years “of application.” If the employer had meant three accidents in any three-year period, it should have said so.

Still, the employer might have been in the clear even if Hardy hadn’t violated the letter of the rule. Before he had a case, he had to compare the punishment he received to someone outside his protected class who was treated more favorably.

Fortunately for Hardy, a much younger patient transporter was involved in four accidents within a three-year period. He was not terminated. That, said the court, was evidence of age bias. It said Hardy’s age discrimination claim could go forward. (Jones v. Pate Rehabilitation Endeavors, No. 3:14-CV-2218, ND TX, 2016)

Final note: It’s a good idea to conduct an informal audit of your disciplinary actions regularly. Look for patterns. Are all or most employees who break the same rule punished the same? For those who face greater or lesser sanctions, have you included documented specific reasons such as extenuating circumstances or prior discipline?

Leave a Comment