When two employees break the same workplace rule, the surest way to avoid a potential lawsuit is to punish both exactly the same. However, that’s not always practical or appropriate. That’s especially true if the conduct involved wasn’t exactly the same.
Before making any final disciplinary decisions, look at the rule and the specific facts. Then document your proposed punishment for each employee, explaining any differences. That worked well in a recent, tragic case.
Recent case: Jacobia worked as an intake and placement director for a state agency that is responsible for incarcerated juveniles. The youths received counseling, treatment, education and other services while living in a secure residential setting.
The agency released several youths who had been held in residential custody into community-based treatment, a less restrictive setting. Jacobia and several co-workers were involved in the process of deciding who to release and were supposed to assess any risk to the public. Unfortunately, one of the released youths allegedly killed someone shortly after leaving the secure residential setting.
The agency held a group meeting after the slaying and asked each employee involved in the release whether they had been aware of any potential danger. All denied having concerns at the time.
Immediately after the meeting ended, one of Jacobia’s co-workers approached his supervisor and explained that he had not been entirely honest; he said there had been warning signs of potential violence.
Further investigation showed that Jacobia had received a report recommending against releasing the youth. When confronted, she denied having seen the report and continued to deny that she knew anything about the risk despite her electronic signature on the report. She was terminated for being dishonest.
Jacobia sued, noting that her male co-worker, who had also lied initially, was not terminated. She said that since they both broke the same rule against dishonest behavior, either both should have been fired or both retained. This was, in her view, a clear case of sex discrimination.
The court disagreed. It pointed out that while both broke the same rule—they denied any knowledge of the youth’s potential risk to the public—the man had almost immediately come clean. Jacobia, on the other hand, continued to deny any responsibility or acknowledge that she had essentially lied until she was terminated.
The court said that because the two behaved differently after breaking the same rule, one could be punished more harshly than the other. (Twiggs v. Selig, et al., No. 11-1682, 8th Cir., 2012)
Equity, flexibility key to lawsuit-proof discipline
Here’s how to help discipline hold up in court:
- Avoid draconian rules that can’t reasonably be enforced. Instead of a zero-tolerance stance on all but the most serious offenses, build in some flexibility.
- Allow for exceptions to the rule. Some offenses should result in automatic dismissal, like violence at work.
- Consider every rule violation on its own merits. Are there mitigating circumstances? If so, note them. Did one employee ’fess up, as in this case, while another did not? Was one employee a chronic rule breaker, and the other an exemplary employee until this time? Factor those variables into your disciplinary decision-making.
