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Employment Blog

Treat Employees the Same - Avoid Discrimination Claim

Authored by Dean R. Dietrich
Posted on October 21, 2013
Filed under Employment

A recent decision from the Seventh Circuit Court of Appeals (governing Wisconsin) accents the importance of an employer treating employees the same especially in the event of disciplinary action issued to an employee. In this decision, the employer terminated a Hispanic employee but only reprimanded a non-Hispanic employee for conduct in violation of company policies that appeared to be similar. The Court of Appeals in Perez v. Thorntons, Inc. (No. 12-3669, 9/30/13), decided that the summary judgment granted to the employer should be reversed and a trial should be held to determine whether the violations were similar in nature and thereby supported a claim of discrimination based upon national origin and gender. The Court did not conclude that the violations were similar but only held that a trial must be conducted to determine the facts and circumstances regarding the violation committed by each employee and the rationale for the discipline issued.

The important aspect of this decision is that courts will review employer disciplinary action to determine whether there was differential treatment between two employees that may support a claim of discrimination if the differential treatment was potentially based upon an employee being in a protected category. This is why it is important for employers to be consistent when considering disciplinary action even in an at-will employment setting where legal challenges to disciplinary action are very limited. The discretion exercised by Company officials will be reviewed to ensure that the Company is not taking more aggressive disciplinary action because an employee falls into a protected category. Employers should keep records of disciplinary actions taken and require any disciplinary action being taken by a supervisor to be reviewed by a human resource employee or other company official.