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Track disciplinary details to stop bias suits

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in Discrimination and Harassment,Human Resources

Employees who are terminated for disciplinary infractions often claim they were singled out because of bias against some protected characteristic. But the fact is, every employee belongs to some protected class—whether based on sex, age, race, disability or another characteristic.

The only way to protect against discrimination lawsuits is to thoroughly document every disciplinary action. Be sure to include details that explain the punishment.

Often, those details will make it impossible for the employee’s lawyers to find someone outside their client’s protected classification who committed a similar offense but escaped the punishment their client got.

Recent case: Jeffrey Opsatnik, who is white and over age 40, worked as a Norfolk Southern locomotive engineer for 10 years until he was fired for safety violations. On his last trip, he was operating a train hauling hazardous chemicals when the weather turned bad. The dispatcher radioed and told him to run the train no faster than 40 mph. Opsatnik ignored the order.

The train arrived safely, but Norfolk Southern checked the train’s speed recorder and cited Opsatnik with excessive speed. Because this was his fourth disciplinary action, he was terminated.

Opsatnik sued, alleging that black, female and younger engineers had not been fired for similar violations.

The court went through the railroad’s disciplinary records and concluded that none was treated more favorably than Opsatnik. In each case, the engineers had either been punished for a first—not fourth—incident or for an issue unrelated to safety (such as attendance). The court dismissed the lawsuit. Simply put, Opsatnik couldn’t find anyone outside his classification who was treated better. (Opsatnik v. Norfolk Southern, No. 08-2177, 3rd Cir., 2009)

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