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Consistent discipline means that employees
who commit similar offenses in similar situations receive the same
consequence. Determining when situations are similar is tricky, but a
recent court decision emphasizes the importance of careful consideration
in any disciplinary action.
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An anxiety-provoking aspect of disciplining
employees is the worry that if the consequences seem arbitrary, you may
face discrimination charges. Ironically, that concern may actually lead
some employers to apply discipline unevenly by disciplining employees who
are not in legally protected classes more severely than other employees. A
recent case from the Eighth Circuit Court of Appeals demonstrates how
inconsistent discipline can create an inference of discrimination. In Lynn
v. Deaconess Medical Center-West Campus, 160 F.3d 484 (8th Cir. 1998), the
court determined that a male employee’s offenses were comparable to those
of a similarly situated female employee and that he may have been
discriminated against because of his sex since he was disciplined more
harshly.
Male Nurse Disciplined More Harshly Than
Female
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In Lynn, the trouble began when a male nurse had a series of run-ins with
his supervisor for lying on a couch and watching television during his
shift. His supervisor verbally counseled him after the incident.
Subsequent minor work rule violations by the employee led to more verbal
discipline, followed by three disciplinary letters. Surprisingly, his
supervisor did not mention this series of disciplinary action in his
annual performance review, which noted only that the misconduct had ceased
and that his performance was satisfactory. A few months after that review,
the male nurse received two more disciplinary letters for failing to
follow work procedures, followed by a recommendation for his discharge. He
was given the option to resign and he did.
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He then filed a sex discrimination lawsuit
under Title VII based primarily on inconsistent discipline. He alleged
that he was disciplined more severely than a female nurse who slept on the
job and whose offenses continued for eleven months before she received
written discipline. The lower court ruled in favor of the employer,
deciding that the male nurse and his female colleague were not similarly
situated because the male nurse’s personnel file contained more
disciplinary records and his offenses differed from those committed by the
female nurse.
Court Rules Male Nurse May Have Been
Discriminated Against
The Court of Appeals disagreed with the lower court and determined that
the male nurse and his female colleague were similarly situated and that
the male nurse had sufficient evidence for a jury to consider a sex
discrimination charge against the employer. In finding that the male and
female employees were similarly situated, this court looked at the nature
and the severity of the offenses committed by both employees and found
they were comparable offenses. In addition, the court pointed out that the
employer should have compared the male and female nurses’ situations to be
sure it was administering the same level of discipline for similar
offenses. For these reasons, the court decided that the case should go to
trial based on the employee’s evidence that he was disciplined more
severely than the female employee for offenses that were less serious.
Consistent Discipline Considers Situation
and Offense
This case illustrates the consequences of not disciplining employees
consistently. Consistent discipline does not mean that employers must
apply the exact same discipline and follow the exact same procedures for
each employee. Rather, as the court found in this case, employers should
try to treat "similarly situated" employees in the same manner. This court
looked at comparable offenses to determine whether the employees were
similarly situated. Other criteria that courts consider for similarly
situated employees are past performance and disciplinary records, job
duties, length of employment, and status or position within the
organization.
A second lesson from this case is that
employers should document disciplinary actions consistently. The male
employee’s performance review characterized his performance as
satisfactory and did not reflect his offenses or the disciplinary action
taken. Thus, the performance review made the employer’s subsequent
termination decision less credible and instead may have supported the
employee’s contention that he was disciplined more harshly because he was
male. Therefore, employers should document the reasons for administering
discipline in employee files so that performance reviews, disciplinary
records, and notes in the files all reflect the same disciplinary issues.
A final lesson is that although it’s
uncommon, men can sue for sex discrimination.
For more information on disciplinary policy,
see Disciplinary Procedure, Chapter 808. |
Personnel
Policy Service, Inc.
