INCONSISTENT DISCIPLINE CAN RESULT IN DISCRIMINATION CLAIMS

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.

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
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.

For more information on disciplinary policy, see Disciplinary Procedure, Chapter 808.