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Track discipline by offense, worker traits to reduce bias risk

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in Discrimination and Harassment,Human Resources,Leaders & Managers,Management Training,Performance Reviews

Employees who believe management has unjustly targeted them for poor treatment often blame it on bias against whatever protected class they may belong to. Maybe that’s easier emotionally than accepting personal flaws or the reality of poor performance. It certainly makes it easier for them to contemplate a lawsuit.

That’s why it’s so important for employers to proactively ensure that they enforce all rules equitably and fairly—so no employee can claim she was singled out for harsh punishment.

But being fair and impartial doesn’t necessarily mean simply falling back on a strict interpretation of your work rules. The key to fairness (and avoiding having to defend yourself against discrimination charges) is your willingness to mete out similar punishment for every employee who breaks the same or nearly identical rules.

Advice: Track all discipline to see whether similar violations netted everyone similar punishment. Then document the justification for each decision.

Recent case: Georgia McCann, who is black, worked as a correctional officer and was on her way to work when she learned that her son had been arrested in another county. She got emergency leave and, still wearing her official uniform, drove directly to the jail where her son was incarcerated. At the jail, she attempted to use her position to help her son and apparently verbally abused the sheriff, who then complained to McCann’s boss.

McCann’s employer suspended her and did not allow her to work overtime for 90 days. She also was barred from a scheduled promotion.

She sued, alleging race discrimination. McCann said two white employees had received milder punishment when they committed similar offenses.

But the court looked at each of the cases and concluded that each was very different. One white officer got into a fight while off duty. Another used obscenities when speaking to a civilian. Neither was suspended.

However, as the court explained, the white officers had not been in uniform in public when they misbehaved, nor had they tried to use their positions for personal gain. Thus neither white officer broke the same or nearly identical rule McCann had. The court ruled in favor of the employer. (McCann v. Tillman, et al., No. 07-11743, 11th Cir., 2008)

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