- A district court properly ended the race discrimination claim of an Alabama hospital employee because he failed to show that others were treated more favorably when disciplined, the 11th U.S. Circuit Court of Appeals concluded (Hester v. University of Alabama Birmingham Hospital, No. 18-15335 (11th Cir., Jan. 7, 2020)).
- The University of Alabama Birmingham Hospital (UABH) fired Christopher Hester after a physical altercation with a psychiatric patient. Hester was let go because he had violated the hospital's prohibition against discourteous treatment of patients and his written statement about the event did not accurately reflect what happened, according to the court's opinion.
- Hester sued, alleging that his supervisor, who is white, had put a patient in a chokehold and was not disciplined. The supervisor denied the accusation in a deposition and other supervisors were not aware of any misconduct by the man, the court said. A lower court granted summary judgment to UABH, ruling that Hester had failed to show that a similarly situated comparator was treated differently. The appeals court affirmed, explaining that Hester had not shown that the other supervisor had engaged in the "same basic misconduct," that the supervisor was not similarly situated to Hester in all material aspects and that the supervisor had not made a statement, "false or not," about his alleged misconduct.
Uneven discipline can serve as evidence of discrimination or retaliation in lawsuits. Employers can't take into account a person's race, color, religion, sex, national origin, age, disability or genetic information "when making decisions about discipline or discharge," according to the U.S. Equal Employment Opportunity Commission (EEOC). For example, the EEOC says, "if two employees commit a similar offense," an employer may not subject them to different forms of discipline because of a protected characteristic.
Plaintiffs have seen success at different stages in their lawsuits when they proved that disciplinary decisions were made on an uneven basis and race or age or some other protected characteristic was involved. National origin bias allegations brought by a Whole Foods employee based on uneven discipline — including a claim that he was the only worker fired for a single incident of overstaying a break — last year survived summary judgment, while the 3rd Circuit U.S. Court of Appeals affirmed a jury's $258,000 award to a terminated 57-year-old manager who claimed that younger co-workers who received failing performance evaluations were treated more favorably.
An appeals court allowed the retaliation claims of an African American lab worker to move forward, in part because of evidence that other, similar co-workers were treated better. Another court found retaliation when a postal worker from China found asleep on the job was fired while her white co-workers who committed similar infractions were not.
Generally, employers can avoid potential legal liability by having comprehensive policies in place, making sure that all employees are aware of the policies, and training managers to apply those policies in a fair and consistent manner.