HR pros know the importance of evenhanded discipline—making sure equal offenses warrant equal penalties and taking care not to punish members of a protected class more severely than others.
But other managers may not be so careful, often preferring to issue casual and informal warnings that aren’t recorded anywhere, only to insist on more severe sanctions when they perceive employees crossing some indefinite line. When that happens, you run a real risk of facing a disparate treatment lawsuit.
Insist that managers tell HR when they issue any form of discipline, even an oral warning. That way, there’s a record that you can later use to explain why it only looks like a discharged employee was punished more harshly than others who committed the same offense.
Recent case: The U.S. Postal Service fired Larry Rasco, who is white, from his job when he allegedly used the label room as a break room and failed to follow directions. He sued, alleging that two Hispanic employees were not fired when they also were caught using the room for breaks.
The Postal Service presented evidence that, while the Hispanic employees had never been disciplined before, Rasco was a frequent rule-breaker. In fact, supervisors had carefully documented his past conduct.
The 5th Circuit Court of Appeals upheld the discharge. The court said there was plenty of evidence justifying Rasco’s harsher punishment. (Rasco v. Potter, No. 07-20155, 5th Cir., 2008)
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