National Clothesline

Disparate treatment is a legal concept that permits employees to show that they were the victims of illegal discrimination without proof that the employer intentionally considered their race, sex, age, disability, and so forth.

The employee merely has to show that there were similarly-situated employees that were treated differently (more favorably), and he is of a different race, sex, age, etc.

Once the employee does that, the employer has to articulate a non-discriminatory reason for the difference. The employee then has the chance, in a discrimination lawsuit, to show that the reason given by the employer is pretextual.

In other words, the reason given by the employer is not believable. Many cases are submitted to a jury to evaluate the reason given by the employer.

Many years ago, an African-American woman working for one of my clients punched a supervisor in the face for taking a Christmas card off the company bulletin board.

Normally, that would be an open and shut case of lawful termination for assaulting another employee. It turned out, however, that a year earlier, a white male employee had assaulted a supervisor with a box cutter and was only suspended, not discharged.

Fortunately, I convinced the EEOC that the white male employee had been provoked by vulgar fighting words by his supervisor, which was a non-discriminatory reason for the disparate treatment. It was dicey, however, given that a weapon was used in the case where lesser discipline was imposed.

This case illustrates, however, that every time a company makes an exception for a particular employee, it must keep in mind that this exception may, in the future, prevent the company from taking action against an employee in a protected classification.

This is one of the reasons why I caution employers not to undertake drug testing programs lightly. Very few are prepared to fire their better employees for testing positive, though they are usually eager to fire the worst.

While consistency is a good thing, it can also be taken to an extreme. A business that never takes performance or extenuating circumstances into account will have a serious problem with workplace morale.

Treating all employees the same prevents rewarding good performance. It creates a union mentality where, eventually, the better employees will resent that they never get any benefit for their hard work.

How does a company avoid legal problems under the disparate treatment doctrine?

The best way is to document at the time an exception is made what the non-discriminatory reason is or why circumstances warrant the exception.

In the case where the employee used his box cutter as a weapon, it would have been helpful if the employer had, in the written disciplinary document, noted that termination was the appropriate penalty, but an exception was being made because the supervisor started and escalated the fight.

If everyone is getting an increase in pay, except for one or two employees, those employees should be told why and the reasons documented in their personnel file.

While it is cumbersome to document each instance of disparate treatment, it is more cumbersome to reconstruct or remember the reasons years down the road.

And for some reason, even employees with bad memories seem to remember these incidents of favorable treatment years later. In fact, when they go to a plaintiff’s labor attorney, they will be asked if they can remember when another employee was treated differently than they were.

If your workplace is a mish-mosh of exceptions, it might be a good idea to reissue your handbook or send out a memorandum stating to all employees that rules will be enforced more consistently in the future. State that past exceptions will no longer be taken into account. It may not prevent a disparate treatment claim, but it could convince a jury that the business was trying to be consistent going forward.

Yesterday, I met with two EEOC investigators, and we discussed the problems of disparate treatment.

They both conceded that if there were disparate treatment, they would investigate discrimination claims more intensely. They also said they would probe the reasons for the exception with a skeptical eye. All the more reason to document exceptions.

Employers need to strike a balance between recognizing that employees are different, in ability, knowledge, attitude, and performance, and recognizing that consistency in treatment has it rewards.

For what it’s worth, the EEOC investigators candidly admitted that it is sometimes difficult for an employer to know what to do. Amen to that.