- A Hispanic worker's claims of race discrimination and retaliation can move forward because of his former employer's uneven application of discipline, the 9th Circuit has ruled (Vasquez v. City of Idaho Falls, No. 18-35255 (9th Cir. July 2, 2019)).
- In his lawsuit, Luis Vasquez claimed the City of Idaho Falls terminated him because of his race. The city said it fired him because he was accused of sexual harassment by his coworkers and because he had fired another employee without authority.
- The trial court granted summary judgment to the city, but the 9th U.S. Circuit Court of Appeals reversed and remanded for a trial. Vasquez had presented evidence that he was subjected to racial harassment by a co-worker and that the city failed to punish the co-worker, "despite receiving reports from multiple people about his racist conduct," said the 9th Circuit. The city also failed to follow its progressive discipline process and treated Vasquez more harshly than it did a white co-worker who had had similarly severe harassment complaints leveled against him, the court said. The 9th Circuit also noted the close temporal proximity — about two months — between Vasquez's most recent complaint and his termination.
When employers dole out discipline in an uneven fashion, discrimination and retaliation claims often follow. The 1st Circuit, for example, recently found retaliation in a case involving an Asian-American postal worker who fell asleep on the job; she was fired six months after making a discrimination complaint, but two white postal workers who also allegedly fell asleep on the job were allowed to retire instead.
Similarly, national origin bias allegations brought by a Whole Foods employee — including a claim that he was the only worker fired for a single incidence of overstaying a break — survived summary judgment, while the 3rd Circuit 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.
The U.S. Equal Employment Opportunity Commission (EEOC) has explained that if two employees commit a similar offense, an employer may not subject them to different forms of discipline on the basis of protected factors such as age, race, or national origin.
How can employers avoid potential legal liability? It's important to have comprehensive policies in place, make sure that all employees are aware of the policies, and train managers to apply those policies in a fair and consistent manner.