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Male Nurse Disciplined More Harshly Than Female
Court Rules Male Nurse May Have Been Discriminated Against
Consistent Discipline Considers Situation and Offense
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 court decision emphasizes the importance of careful consideration in
any disciplinary action.
[Creating HR Policies or Employee Handbook?]
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
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.
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.
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Personnel
Policy Service, Inc.
