Consistent Employee Discipline: Not "One Size Fits All" Q&A

When considering employee disciplinary procedures, you know that you should treat your employees consistently. However, being consistent does not mean you have to treat them all the exact same way. Find out how you can take appropriate, fair action and limit potential inconsistencies that could cause legal problems.

Q: Our managers are having difficulty implementing our employee disciplinary procedures. Several of them insist that we must treat every employee exactly the same when we discipline them or we will face discrimination and other legal claims. But, this approach does not give us much flexibility and even can result in heavy-handed discipline. Do we have to treat employees this way?

(Download free Disciplinary Procedures model policy including best HR practices and legal background.)

A: It is true that much of the litigation aimed at employers arises out of the inconsistent application of discipline. To prevent these claims, some employers assume that you must apply the exact same discipline and follow the exact same procedures for each employee in order to be “consistent.”

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However, you are not required to treat every employee the same way. Rather, you should try to treat “similarly situated” employees in the same manner. Typically, courts consider a number of factors to determine if employees are similarly situated and being treated fairly, including:

1. Job duties and status;
2. Length of employment;
3. The nature and severity of the incidents leading to discipline; and
4. Past performance and disciplinary records.

For example, an employee who has been with the organization for five years and has a good performance record with no disciplinary infractions may be treated more leniently than an employee who has only worked for a year and has several documented performance or disciplinary problems. In a different example, a manager who uses profanity may be disciplined more severely than a nonmanagerial employee who uses the same language, because the manager is supposed to enforce the work rules and set an example.

So, to illustrate, in Lake v. Yellow Transportation, Inc., 596 F.3d 891 (8th Cir. 2010), an African-American employee who was terminated for attendance and tardiness problems was able to go to trial on a claim of race discrimination because white employees who had similar attendance issues were not terminated. Similarly, in Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000), a court determined that an African-American employee could pursue his claim that the employer’s disciplinary action against him was a pretext for race discrimination. He showed that similarly situated white employees received multiple “last chance” agreements before termination, but that he was terminated after only one.

In contrast, in Ruiz v. County of Rockland, 609 F.3d 486 (2d Cir. 2010), a Hispanic supervisor terminated for failing to report inappropriate coworker behavior and patient abuse was unable to prove discrimination based on national origin and race because other similarly-situated employees were disciplined less harshly. The court determined that although two other supervisors also had failed to report the inappropriate conduct between coworkers, those supervisors did not observe the conduct first hand as did the terminated employee.

And, in Bio v. Fed. Express Corp., 424 F.3d 593 (7th Cir. 2005), an African-American engineer terminated from his job for poor performance could not prove race discrimination based upon what he claimed was more favorable treatment of a white engineer who reported to the same supervisor and also had performance problems. The court cited a considerable gap in the two men’s experience and noted that the performance complaints against the white employee occurred when he was still learning how to perform his duties.

How to Discipline & Document Employee Behavior

To help limit inconsistencies and ensure that discipline is administered in an evenhanded manner, you should take the following three steps:

1. Have clearly written policies on employee discipline and procedures;
2. Train supervisors in implementing the employee disciplinary procedures; and
3. Continually review disciplinary and termination decisions.

In addition, in your written policies, you should reserve the right to exercise management discretion, particularly in more serious disciplinary matters. There may be times when you need to skip steps or move immediately to suspension or termination, depending on the severity of the employee’s misconduct or performance deficiencies. Likewise, some employers limit the expectations of new or introductory employees and do not apply multi-step disciplinary procedures to them since a lengthy process may only prolong a bad hiring decision.

(Download free Disciplinary Procedures model policy including best HR practices and legal background.)

Sound policies and procedures and their consistent application to similarly situated employees are fundamental tools in discipline. But an equally important final element is still needed: the appearance of fairness. While fairness may not be required by law, it is usually the most vital element to your employees and the one that will cause the most trouble if you leave it out.

Regards,

Robin Thomas, J.D.
Personnel Policy Service, Inc.

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