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‘Same’ offense? Document why discipline differs

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in Discrimination and Harassment,Firing,Human Resources

If you punish two employees differently for what looks like the same rule violation or mistake, you’d better be prepared to explain why. If you are later challenged, you should be able to show that the two weren’t “similarly situated” and prove you didn’t favor one over the other.

That could become a problem if the more harshly punished employee belongs to a protected class in which the other employee does not belong.

Recent case: Lori Davis worked for Farmers Insurance Exchange, a company with a strict policy against accepting gifts or anything of value from vendors or clients.

Davis accepted an invitation to a fishing and golf tournament. She spent the night in accommodations provided by the vendor, which also paid her tournament fees. Another Farmers’ employee, a man, also attended the events.

The insurer got an anonymous complaint about Davis and the other employee. It investigated and discovered that while Davis let the vendor cover her costs, the male employee paid his own way.

Davis was fired and sued, alleging sex discrimination.

The court tossed out her case. It concluded that Farmers had shown it had a legitimate reason for firing Davis and not her male co-worker. (Davis v. Farmers Insurance Exchange, No. 4:08-CV-625, ND TX, 2009)

Final note: How extensive an investigation must you conduct before you decide on a punishment? You don’t have to go to extremes. Just do a thorough enough investigation to satisfy yourself that you have gotten to the bottom of the matter. Courts look for a good-faith effort; they don’t expect you to become a court of law. In fact, you can even be wrong as long as you acted in good faith.

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