Dive Brief:

• The fact that an aspiring Walmart manager did not apply for a position above assistant manager was not fatal to her claims of sex bias, a federal district court has ruled (Hernandez v. Walmart Stores, Inc., No. 10-cv-50221 (N.D. Ill., July 20, 2020)).
• Sarah Hernandez worked for several Illinois Walmart stores. She began as an associate, was promoted to department manager and eventually joined the manager in training program (MIT). At the store where she worked after completing the MIT program, Hernandez said her manager treated her differently from the male managers, including in disciplinary matters, and made it clear that he would not support her desire for further promotion. As a result, she claimed, she did not apply. Hernandez sued after she was fired for an infraction.
• Walmart moved to dismiss the claim, arguing that Hernandez was promoted twice and did not apply for any jobs above assistant manager. The court, however, disagreed that those facts were enough to dismiss the suit: "The fact that Plaintiff received promotions early on in her career does not defeat the inference that further progress ended for reasons related to sex," it said. Citing a 7th U.S. Circuit Court of Appeals opinion, the court also noted that, while a person who claims discrimination in promotion will be expected to show that she submitted a written application for a position, that requirement can be relaxed where a plaintiff is deterred from applying by the alleged discriminatory practices. 

Dive Insight:

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, 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.

The Hernandez lawsuit and several others show that plaintiffs have been able to move their cases forward by showing that disciplinary decisions were made on an uneven basis and race or age or some other protected characteristic was involved. For example, 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 — survived summary judgment in 2019. Similarly, the 3rd U.S. Circuit Court of Appeals affirmed a jury's $258,000 award to a terminated 57-year-old GNC manager who claimed younger co-workers who received failing performance evaluations were treated more favorably.

HR can work to ensure policies are applied consistently and that employees who violate the policies experience the same disciplinary actions. Otherwise, disciplinary actions may look like discrimination and retaliation, sources previously told HR Dive. There will, of course, be exceptions, as the EEOC notes in a guidance, which means that documentation is crucial.