Gender Discrimination or Progressive Discipline
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Gender Discrimination or Progressive Discipline

An unequal progressive discipline policy can lead to gender discrimination lawsuits

“A three-day suspension?” exclaimed Nell Harrison. “You’ve got to be kidding.”

“You violated policy,” said HR Director Bud Travis. “It’s cut and dried.”

“All I did was stop at my house for a quick sandwich on the way back from one of my inspections,” replied Nell. “I didn’t take a lunch break that day, so it all evens out. What’s the big deal?”

A month before, Nell had been transferred from an on-site security position to one that required she make inspections at off-site locations.

No unnecessary stops

“Our policy is that you’re strictly prohibited from leaving company premises during work hours without permission,” said Bud.

“But I was already off premises,” said Nell.

“We went over this with you when you took the new position,” said Bud. “As far as we’re concerned, you’re still on company premises when you’re at the sites and when you’re going to and from them. No unnecessary stops.”

“Okay, I shouldn’t have stopped,” Nell admitted. “But a suspension is totally unfair.”

“That’s our decision,” Bud said.

“You know, I’m not the only one who’s ever made ‘unnecessary’ stops,” said Nell. “I know of at least two men in my department who got a written warning but no suspension. Why are you treating me more harshly than them?”

“I don’t know the details of those cases, so I can’t comment on them,” said Bud. “All I know is that I personally warned you not to make stops and you clearly violated our policy. You’re suspended.”

Nell filed a gender discrimination lawsuit, charging that her male colleagues were treated more favorably for the same violation.

Did she win?

The decision

Yes, Nell won her gender discrimination case. She was awarded $725,000 for lost pay and mental anguish.

The judge looked carefully at the company’s progressive discipline policy, which called for oral and written warnings before more serious discipline is imposed.

Bud had to admit in court that he’d skipped over the oral and written warnings. What’s worse, he had to explain why he’d issued only written warnings to male employees for similar violations. These facts supported Nell’s claim of gender discrimination.

What courts look at

In any case like this, the court will look closely at:
1. Documentation of how the company handled similar complaints. This must demonstrate that similar violations drew similar penalties regardless of gender, race, age or any other protected category.
2. The specific policy that the employee is charged with violating or is complaining about, including evidence to show that he or she was aware of the policy.
3. Records of progressive discipline showing that the company policy was followed as spelled out in the employee policy manual.
4. Records of performance reviews showing continued substandard performance or rules violations.

Lummer v. Humana of Kan., Inc.

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