Consistency—Easy to Say, Hard to Manage

What Happens When You’re Not Consistent?

The standard complaint in a discrimination charge or lawsuit is, “You did X to me because I am Y.”

• “You fired me because of my ethnic background.”
• “You didn’t give me the promotion because of my gender.”
• “You demoted me because of my age.”

These allegations are serious, but typically, unless there is “smoking gun” evidence, for the charges to stick, there must be comparators. That is, people who are not in the protected class, and who did not suffer the termination, demotion, or other detriment for the same offense.

Now the charge can state, “You fired me—a member of a protected group—for this offense, but you didn’t fire those people—who are not in the protected group—for the same offense. Therefore, I was discriminated against on the basis of my membership in the protected group.”

Now you’ve got a lawsuit on your hands, and it becomes your job to prove that your action was taken for a good business reason.

How does a company get into these situations? Inconsistent treatment. It may not have been intentional, but for some reason, people were treated differently, and that gives rise to the opportunity to charge discrimination.

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Does ‘Consistent’ Mean ‘The Same’?

So should you always mete out exactly the same punishment for anyone who is guilty of the same infraction? Not necessarily. For example, you can make distinctions on the basis of

• Longevity. That is, you can cut some slack for a 15-year employee and not for a 6-month employee.
• Repeated infractions. A person committing his 8th infraction needn’t be treated the same as one committing a first infraction.
• Egregiousness. The severity of the infraction may also be taken into consideration. For example, stealing a pad of paper, stealing a customer list, and stealing a computer could result in different punishments.

One good way to think of consistent is to say, treat similarly-situated employees the same.

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Documentation Is Key

You may be secure in the knowledge that what you did was right and you did it for good reasons, but to prove it to others, you need documentation. Unfortunately, documentation often fails. For example, here are typical documentation difficulties:

• No documentation at all. This is always going to put you in a weak position. Outsiders assume that companies are well-run, so there’s suspicion if key documents are missing.
• Documentation is questionable. A number of factors can lead others to doubt your documentation:
• Hard to read (a photocopy of a scan)
• Lacking critical information (e.g., name, date)
• Documentation does not agree. The classic case is when you say you terminated someone for poor performance, and then the performance appraisal says ‘Satisfactory” or “Good.”
• Documentation is not contemporaneous. Documentation written long after the fact is suspicious.

In tomorrow’s Advisor, how to handle exceptions to policy, and an introduction to a very timely webinar on the newly issued—and difficult to decipher—ADA amendments.

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