Smart managers know that inconsistent discipline is a huge trigger for employee lawsuits. As in: “You only fired me because I’m a 53-year-old disabled black female Panamanian, and a Mennonite. You didn’t fire a 25-year-old white male Jersey-born Episcopalian who did exactly what I did.”

So what’s the solution? Must you use an inflexible formula, a one-size-fits-all approach, to discipline employees?

‘Similarly situated’
Not at all. Remember, when somebody sues for allegedly discriminatory discipline, the courts look at what they call “similarly situated” employees to see whether any of them were treated more leniently than the plaintiff. Similarly situated, according to the courts, means employees who have (1) similar job functions, (2) similar seniority and (3) similar disciplinary and performance records.

So, for example, you’d be perfectly within your rights if you:

  • wrote up a line employee who’s been with the company for eight years and has a perfect disciplinary record, and then, for the same offense
  • fired a foreman (a person with a special responsibility to show a good example) who has just two years seniority and two previous warnings in his file.

Some of these parameters may be contained in your organization’s progressive discipline policy. But even if they’re not, you can take them into consideration when deciding what discipline to use.

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