I am please to share below my most recent blog for SHRM:
As we all know, in EEO termination claims, how we treat the “comparators” is critical. Two (2) key questions:
1. Did you let anyone else go for a same or similar reason?
2. Did you not let someone else go even though they had engaged in same or similar conduct?
What do you do if you have an inconsistent practice historically?
If you take a hard line, you may get an EEO claim. You are treated more harshly than X because of my [insert protected group or protected activity].
If you play it safe and a avoid hard line, you run the business risk by making bad precedent a consistent policy.
The beginning of a New Year is a great time to minimize the risk of bad precedent.
Prepare a document now stating that, regardless of what may have been the practice in the past, effective January 1, 2016, you will do X consistently. You may even want to communicate something to that effect to the workforce (but without directly stating that there may have been prior inconsistencies).
What is the benefit? You can show you have decided how you will handle the situation prior to and independent of knowing who next engages in the conduct at issue. If an employee is fired and brings a discrimination claim and uses pre-2016 comparators, you can defend on ground that the difference is not age, sex, race, etc., but rather the year in which the infraction occurred.
This does not eliminate the legal risk. But it should minimize it materially. And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.
Almost all predict that 2016 is going to be a difficult year. To meet your business needs, you will need agility without being bogged down by bad precedent.
Of course, it is more complicated with unions. You may need to negotiate with the union. At a minimum, you always should provide the union with notice.
Bad precedent is, well, bad. Now is an ideal time to start making good precedent. Happy New Year.
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP