Discrimination Claims Protection

April 13, 2006

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If you don't have clearly stated work rules, how can you enforce any rule fairly? If you fire or discipline one employee for breaking a rule and don't fire someone else for the same action, you could be violating either federal or state antidiscrimination laws. Having clear work rules ensures that every employee understands what is acceptable behavior and what isn't. A clear definition of what is required and the consequences of failing to comply make it easier for you to respond consistently to work rule violations. An ambiguous rule or uneven enforcement of any rule opens your actions to challenge as arbitrary or discriminatory.

Bob (an African-American employee) and Joe (a Caucasian employee) get into a fight on company time. You break up the fight and find out that Bob threw the first punch. You suspend Bob because he started the fight. You don't, however, suspend Joe because he didn't start the fight and it doesn't seem fair to punish him.

If you have a policy against fighting that says employees who fight on the job will be suspended, you've got a problem because you only suspended one of the employees involved. Such an action could be construed as disparate treatment because you only reprimanded one employee, and he is a member of a protected class. Bob could raise the issue of discrimination.

If your policy clearly states that fighting is not acceptable on company time, and that an employee who throws a punch or starts a fight will be suspended, you are in a much better position to defend your actions.

Other policies might be applied fairly and consistently to all employees, but might still penalize members of protected groups more often. Such policies are said to cause disparate impact, which can get you in trouble with the civil rights laws. Following are some examples of work rules that may result in disparate impact:

A rule calling for disciplining of employees arrested and charged with a crime might have an adverse impact on minority workers because, in some areas, minority group members are more frequently arrested than nonminorities. You can still have such rules, but be prepared to prove that there's a strong business reason to have them.
Even a seemingly innocent rule requiring employees to wear a uniform can have an adverse impact on members of an ethnic or religious group that requires its members to wear a special head covering or some other identifying article of clothing.

In making rules, be sensitive to the needs and circumstances of your employees. In enforcing your rules, always be consistent and fair. That way, when disciplining employees is necessary, your actions will be defensible.