Disciplining employees for violations of company policy is generally a good thing for an employer to follow. However, when a company disciplines employees differently for the same offense, some employees may perceive it as discrimination even if there is a valid reason for imposing a different discipline. Even small variations in punishment may lead to a discrimination claim.

Discipline Policy

The discipline of employees often gives rise to employment lawsuits. Employers should have clear disciplinary standards and evidence that employees were given notice of such policies and procedures. The standards must be applied uniformly. The company should retain the right to determine what discipline will be imposed in each individual situation.

To help prevent lawsuits, the disciplinary procedure should follow the rules below:

  • The employee must know the nature of the problem
  • The employee must know what he or she must do to fix the problem
  • The employee must have a reasonable period of time in which to fix the problem
  • The employee must understand the consequences of inaction

Consistent Discipline

Consistent discipline does not mean that employers must apply the exact same discipline and follow the exact same procedures for each employee. Consistent discipline means that employees who commit similar offenses in similar situations receive the same consequence.

To determine whether employees are similarly situated, an employer should look at the following criteria:

  • Comparable offenses
  • Past performance and disciplinary records
  • Job duties
  • Length of employment
  • Status or position within the organization

Document Disciplinary Actions Consistently

Employers should document disciplinary actions consistently. 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.

Discrimination Claims

Your employer normally cannot fire you or discriminate against you because of certain personal characteristics. State and federal law prohibits employers from discrimination on a wide variety of bases, including race, color, religious creed, national origin, sex, sexual orientation, genetic information, military status, ancestry, age or handicap.

An employee may claim that an employer applied its policy in a discriminatory manner. The employee will likely be required to prove that another employee, not within the same protected class, committed the same offense but received lesser discipline.

The state Department of Fair Employment and Housing (DFEH) and the federal Equal Employment Opportunity Commission (EEOC) each investigate claims of job-related discrimination. If you have experienced job discrimination and you cannot resolve the situation with your employer, you may file a formal claim with either of these agencies. A claim must be filed with the DFEH within one year of the discriminatory event. A claim must be filed with the EEOC within 300 days of the discriminatory event. You only need to file a claim with one of these agencies.

Filing a Lawsuit

You cannot file a lawsuit without first filing a claim with either the DFEH or the EEOC. If your case is not resolved with the DFEH or EEOC, you should receive a Right to Sue letter. You must have or request such a letter before filing a lawsuit.

Fear of Retaliation

If you have not reported illegal discrimination or filed a claim with the DFEH or EEOC for fear of retaliation, you may not realize that state and federal law prohibits employers from firing or otherwise retaliating against any employee who complains about discrimination. In many cases, juries have found that an employer did not discriminate against an employee but did retaliate against the employee.

Questions for Your Attorney

If you believe you are the victim of workplace discrimination, you may want to consult an attorney before filing a discrimination claim with the DFEH or EEOC. This is because your initial statements to the DFEH or EEOC could limit what you are allowed to claim in any future lawsuit.

Questions for Your Attorney

  • How much experience do you have with workplace discrimination cases?
  • Do you have references that I can contact, preferably workplace discrimination clients?
  • Can an employer fire a person who is out sick?
  • I am a 45 year old female and I think that my employer is treating me illegally by disciplining me in a different manner than other employees. How do the laws apply to my situation?