The lynchpin of a discrimination case involves proving different treatment of an employee as compared to one or more others outside the legally protected group. As an example, imagine an allegation by a female that "Jim and John had lower quality work than me but were not fired while I was." Different rules for different employees spells trouble and can at least appear to be (and sometimes actually is) illegal discrimination.
Simply stated, make sure your policies and practices are applied equally to everybody in the workplace. Suddenly requiring a pre-employment physical for an employee when you don't normally require pre-employment physicals for anyone else has the potential to be problematic for that employer. Requiring Sally to notify her boss of absences at least 24 hours in advance per written policy while allowing Hector and Jim to notify within only an hour may get you in trouble despite that there is otherwise nothing wrong with the written policy itself. The problem is with the differential application of the policy.
Sometimes exceptions to rules are made but, when they are, be ready to explain and defend them with truthful, nondiscriminatory reasons. If you fire Jim for failing the drug test but you didn't fire Mark, who also happens to be much younger than Jim, you may be headed for trouble in an age discrimination case. If the real reason for the different treatment is that Mark had an otherwise unblemished record for ten years but Jim failed his drug test after 90 days of spotty employment and that's why the exception was made, you might win the discrimination case if the jury believes you but the question of discrimination can arise whenever such exceptions to rules are made. Sometimes there are so many exceptions to the rule, the rule is swallowed up entirely and meaningless. Then also change your rule to reflect your actual practice.
One of the first questions I ask an employer when they ask whether they should or should not do something is "what is your policy and what exceptions have you made before and why." Sometimes the policy itself may be illegal but that's a different topic. Otherwise, be consistently consistent in the application and enforcement of your workplace rules and policies or be well-prepared to defend why you made the exceptions. http://www.employmentlawman.com/monday-morning-musings.html
Simply stated, make sure your policies and practices are applied equally to everybody in the workplace. Suddenly requiring a pre-employment physical for an employee when you don't normally require pre-employment physicals for anyone else has the potential to be problematic for that employer. Requiring Sally to notify her boss of absences at least 24 hours in advance per written policy while allowing Hector and Jim to notify within only an hour may get you in trouble despite that there is otherwise nothing wrong with the written policy itself. The problem is with the differential application of the policy.
Sometimes exceptions to rules are made but, when they are, be ready to explain and defend them with truthful, nondiscriminatory reasons. If you fire Jim for failing the drug test but you didn't fire Mark, who also happens to be much younger than Jim, you may be headed for trouble in an age discrimination case. If the real reason for the different treatment is that Mark had an otherwise unblemished record for ten years but Jim failed his drug test after 90 days of spotty employment and that's why the exception was made, you might win the discrimination case if the jury believes you but the question of discrimination can arise whenever such exceptions to rules are made. Sometimes there are so many exceptions to the rule, the rule is swallowed up entirely and meaningless. Then also change your rule to reflect your actual practice.
One of the first questions I ask an employer when they ask whether they should or should not do something is "what is your policy and what exceptions have you made before and why." Sometimes the policy itself may be illegal but that's a different topic. Otherwise, be consistently consistent in the application and enforcement of your workplace rules and policies or be well-prepared to defend why you made the exceptions. http://www.employmentlawman.com/monday-morning-musings.html
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