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Revisiting What It Means To Be "Consistent"

“Consistency” is no lame term of art or ethereal concept; we buy into it all the time. As athletes for example, everyone generally agrees that consistency in training is the key to improved performance. Heck, it’s been baby boomer’s mantra for child rearing! So, why does consistency fly out the window in the employment context? Why do supervisors and managers bypass this consideration when doling out discipline or granting employees’ requests for exceptions to company policies?

Unfortunately for employers, this conundrum just got worse. Recently, the United States Supreme Court decided that trial judges have the discretion to admit or exclude testimony offered by a plaintiff's co-workers regarding unrelated incidents of discrimination by supervisors who had no role in the challenged employment decision, otherwise referred to as “me too” testimony. Sprint/United Mgmt Co v Mendelsohn, U.S. S.Ct, Dkt No 06-1221 (Feb. 26, 2008). What does the Sprint decision mean to employers? Well, not only should decision-makers make certain their actions are consistent within his/her department, but arguably should make sure the policy has been similarly enforced throughout the departments. Sound a bit onerous? Read on.

The Sprint decision is daunting considering many supervisors/managers fail to consistently apply and/or enforce policies within their own department. Remember the old adage, “no good deed goes unpunished”? Nowhere is that more true than the employment world. Forget about exceptions made on a “case by case” basis; those exceptions may come back to haunt you. While inconsistent application of workplace policy may not per se suffice to establish a plaintiff’s burden of proof of discrimination, it may nonetheless be sufficient to constitute circumstantial evidence of discrimination, and at the very least give rise to a triable issue of fact thereby defeating an employer’s motion for summary judgment. See e.g., Ash v. Tyson Foods, Inc., 129 Fed. Appx. 529, 533 (11th Cir. 2005), rev’d on other grounds, 546 U.S. 454, 126 S. Ct. 1195, 163 L.Ed. 2d 1053 (2006) (“we have also observed that deviation from company policy can be circumstantial evidence of discrimination, especially where the rules were bent or broken to give a non-minority applicant an advantage”). See also, Freeman v. Barnhart, 2008 WL 744827 (N.D. Cal. March 18, 2005) (finding plaintiff’s evidence of another employee who engaged in similar conduct but was not disciplined established a prima facie case of discrimination).

Inconsistent treatment of employees can be problematic in the employment litigation arena. For example, a manager’s repeated, pervasive and disparaging remarks about an employee’s necklace, which she claimed to be a Wiccan religious symbol, and the display of a co-worker’s Christian religious jewelry with impunity, created an inference of bias thus defeating the employer’s motion for summary judgment. The plaintiff, a Starbucks employee, was terminated purportedly for receiving a third corrective action notice when she failed to show for a scheduled shift. The employee claimed she told her manager she would not report to work due to an injury she received on the job. The employee sued for religious bias under Title VII and Oregon law, claiming her manager’s comments about her necklace prompted her to contact HR about permitted jewelry in the workplace. (Hedum v Starbucks Corp, 90 EPD ¶43,107). The district court concluded the employee stated a prima facie case of religious bias under Title VII and Oregon law based on the employee’s ability to show another employee of different religious beliefs that did not receive disparaging remarks from the manager. Notably, the “inconsistent” treatment by management in this case did not relate to application of a policy that was the subject of discipline i.e., attendance policy; but rather a “jewelry” policy unrelated to the policy which led to her termination.

RealSolutions for Today’s Employers

How consistent, is consistent? Well, if you have a policy, apply it uniformly, to everyone, in all situations. In Guard Publishing, Inc’s manual, the company had a policy prohibiting employees from using its e-mail system to send non-job-related solicitations. An employee used the system to send e-mails soliciting employee action in support of the union. The National Labor Relations Board (NLRB) found the policy neutral in substance and spirit, but disparately applied because the company allowed other employees to send non-work-related e-mails that did not contain solicitations. The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB No. 70 (2007). Thus, discipline of the employee who sent union issues via e-mail and not the others constituted illegal conduct under the National Labor Relations Act (NLRA).

So what must an employer do to remain compliant and avoid inferences of unfair illegal conduct? TRAIN all management on employment laws annually at a minimum. CONSULT human resources prior to taking adverse action or granting exceptions to policies, particularly in light of the Sprint decision. REVIEW your decision from a jury’s point of view. LISTEN to complaints relating to policies being waived or selectively enforced. RECONSIDER whether granting an exception to policy is worth the next 2 years of your life!