One of your employees has been violating work rules. You document the problems and eventually terminate the worker. It appears you’ve done everything right and responded appropriately to the employee’s misconduct. But a new ruling makes clear that viewing each case of discipline and termination in a vacuum can get you in trouble. Even if you’ve handled everything by the book, you can still be sued if other employees who also broke the rules were treated differently. Here’s a look at the new decision and what it may mean for your own discipline procedures.
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Nurse Watches TV On The Job
Michael Lynn worked as a registered nurse for the Deaconess Medical Center in Missouri. According to the hospital, there had been several complaints about Lynn’s job performance. On one occasion, he allegedly laid on a couch and watched television while on duty.
He was later verbally counseled for problems such as arriving late to work, low productivity, failing to comply with time-clocking rules and lacking compassion toward patients and staff.
After two other performance-related incidents, the hospital recommended Lynn be discharged. He chose to resign instead, and sued Deaconess for gender discrimination.
Women Treated More Leniently
The crux of Lynn’s claim was that the hospital treated female nurses with similar performance problems more leniently. Lynn said a female nurse who repeatedly napped with the television on during her shift wasn’t disciplined until the hospital had received more than four complaints.
The hospital countered that Lynn’s case should be dismissed because there was a legitimate reason for treating the female nurse and Lynn differently-Lynn had an extensive record of disciplinary problems while the female nurse did not. It also pointed out that the two workers’ offenses were not the same.
Male Worker Can Sue For Bias
But the federal appeals court disagreed and ruled that Lynn could present his sex discrimination case to a jury. According to the court, even if two employees’ performance problems are not identical, a jury can still compare them to see if the workers were treated differently because of their gender. Plus, the court said, Lynn’s more extensive disciplinary record could simply be further evidence that he was a victim of sex discrimination, rather than a genuine explanation for why he was treated differently from his female counterpart.
Discipline Tips
Although the court’s ruling isn’t binding in California, its reasoning could well be applied here, and it highlights the importance of consistency in imposing discipline. Even if you have legitimate reasons for treating some workers differently than others, it’s easy to inadvertently create the appearance of illegal discrimination-which can trigger a lawsuit.And as this case involving a male nurse shows, you can be at risk even when the employee does not appear to be a member of a protected class.
Here are some suggestions:
- Create an oversight process. Keeping track of how other employees with similar performance problems have been treated isn’t always easy. Nevertheless, it’s important to have procedures in place for reviewing major personnel actions. At a minimum, decisions involving demotion, promotion and termination should be considered in advance by someone other than the initiating supervisor. Having an uninvolved supervisor or HR manager look over the record can ensure consistency and reduce the chance that something important will be overlooked.
- Retain flexibility. Although it’s usually a good idea to provide a worker with an opportunity to improve before termination, don’t tie your hands with a progressive discipline policy that requires you to take specific steps in response to workplace violations. Not only can progressive discipline policies undermine at-will language stating that employees can be terminated at any time with or without cause, but they can seriously limit your flexibility in dealing with problems.
If you do have a progressive discipline policy, be sure to follow it to the letter or you’ll give the jury a convenient reason to rule against you.
- Follow consistent guidelines. Appropriate discipline should be proportionate to the offense committed and designed to prevent or discourage future problems. To avoid treating employees in similar situations differently, try to use the same checklist of issues each time you make a discipline decision.
Questions to ask include: How serious was the behavior? Did the employee know the conduct was not permitted? Was the action an isolated incident or part of a continuing pattern? Were there prior warnings or disciplinary problems? How long has the employee been with the organization? And finally, how have similar situations been handled in the past?