Uneven Discipline Can Lead to Big Headaches – and Even Bigger Lawsuits

By Eric B. Meyer

A longtime employee of the Secretary of State’s office in Illinois claimed that two white managers targeted him for termination because he is black, and two white employees, one of whom was his supervisor, received lesser discipline even though they had engaged in the same alleged misconduct.

Is that right? Can a black employee claiming that he was treated differently because of his race compare himself to a white supervisor or purposes of proving his discrimination claim?

Yes, indeed: Employers cannot intentionally discipline employees more severely on the basis of a protected class.

A “common-sense” inquiry

In cases where a black employee alleges race discrimination, at a minimum, he generally must show that his employer was more lenient with similarly-situated white employees. More often than not, supervisors make poor comparators for plaintiffs claiming employment discrimination. This is because employees of higher rank typically have different responsibilities or performance standards. (This is especially true in case where the plaintiff claims that he was passed over for a promotion).

In Rodgers v. White, however, the Seventh U.S. Circuit Court of Appeals in Chicago recognized that the “similarly-situated” analysis is, by no means, formulaic. Instead it requires:

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A flexible, common-sense inquiry that asks ‘whether the other employees’ situations were similar enough to the plaintiff’s that it is reasonable to infer, in the absence of some other explanation, that the different treatment was a result of race or some other unlawful basis.”

Perception of unequal treatment can lead to a lawsuit

Therefore, when uneven discipline forms the basis for a discrimination claim, especially where the plaintiff and supervisor are accused of making similar mistakes, are equally responsible for avoiding those mistakes, and were disciplined by the same superior, the plaintiff may have a tenable claim of race discrimination.

In Rodgers, the facts showed that both plaintiff (black) and his supervisor (white) allegedly made personal use of state property and inaccurately reported their time. Yet, the plaintiff was fired, while his supervisor was only demoted. Plus, the court wasn’t buying the defendant’s reasons for disciplining the plaintiff. So, the Seventh Circuit reversed the lower court’s grant of summary judgment for the employer and remanded the case for trial.

Easy lesson here: treat your employees equally when disciplining. Even the perception of unequal treatment can lead to a lawsuit.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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