Like any other business operator, as a small business owner, you have to make business decisions every day. Sometimes the decisions involve how to handle an employee's work-related misconduct or violation of your company policy. And maintaining discipline at the work place and enforcing your policies are vital to keeping your business running smoothly and efficiently.

However, disciplining employees can be risky if you don't do it right. Specifically, you need to make sure that you don't discipline employees differently for the same offense, because being inconsistent could land you in court on a claim of employment discrimination.

The Ideal Discipline Policy

Because disciplining employees often gives rise to lawsuits, you should have clear disciplinary standards and evidence that employees were given notice of the policies and procedures. You need to make certain that the disciplinary standards are applied uniformly to all employees. Even small variations in punishment may lead to a discrimination claim.

To help prevent lawsuits, your disciplinary procedure should make sure that the employee:

  • Is told the nature of the problem
  • Knows what it is he or she must do to fix that problem
  • Is given a reasonable period of time in which to fix the problem
  • Understands the consequences of his refusal or failure to fix the problem, such as a written reprimand placed in his or her employment file, suspension from work (with or without pay), or termination

Consistency in the discipline you impose on your employees is critical. But, consistency doesn't mean that you have to apply the exact same discipline and follow the exact same procedures for each employee. Consistent discipline means that employees who commit similar offenses in similar situations receive the same consequence.

To determine whether employees are similarly situated, you need to look at several factors, such as:

  • Whether the workers committed the same or similar policy violations
  • Each employee's past job performance and disciplinary records
  • Whether the employees' job duties are similar
  • How long the employees have been working for you, and the frequency of an employee's violations of workplace policies

Document all disciplinary actions consistently. You should document and record the reasons for disciplining an employee so that performance reviews, disciplinary records and notes in the employee's file all reflect the same disciplinary issues.

Discrimination Claims

Generally, you can't fire an employee or discriminate against one because of certain personal characteristics of the employee. There are several federal anti-discrimination laws you need to keep in mind, including:

Also, many states have similar laws that might also prohibit employment discrimination based upon the employee's sexual orientation.

An employee may claim that you applied your disciplinary policy in a discriminatory manner. The employee will likely be required to prove that another employee, not within the same protected class, committed the same offense but received lesser discipline. For example, a female employee might claim that you disciplined her more harshly than a male employee who committed the same violation of company policy.

Generally, an employee who claims that you applied your disciplinary policy in a discriminatory manner must first file a complaint with the Equal Employment Opportunity Commission (EEOC) or the Fair Employment Practices Agency (FEPA) in your state. Usually, a discrimination claim must be filed with the EEOC within 180 days of the claimed discrimination, or within 300 days if a state anti-discrimination law is involved.

The EEOC or FEPA will investigate the matter, and if it thinks the employee has a valid claim, it will file suit against you on behalf of the employee. If it does not, it will typically give the employee a "right to sue letter," which authorizes the employee to hire a private attorney to file a lawsuit against you.

The anti-discrimination laws can be complicated. So, if you're unable to resolve an employee's complaint on your own and you're confronted with a suit by the EEOC or the employee, consider contacting an experienced business law or labor law attorney immediately.

Don't Retaliate

The same laws that prohibit discrimination based on things like an employee's race, sex and age also prohibit retaliation against an employee who files a discrimination claim. Retaliation can take a number of forms, including demoting an employee, refusing to promote him, or giving the employee unjustified negative performance reviews.

Also, it's not uncommon for an employee to claim that he did not file a discrimination claim because he feared that you would retaliate against him or her for making such a claim. So, it's absolutely critical that you document your reasons for taking any disciplinary action against an employee.

Questions for Your Attorney

  • If an employee files a claim with the EEOC, how long will it take to resolve?
  • If an employee claims that I disciplined him in a discriminatory way, and he files a compliant with the EEOC, can I still try to resolve the matter with him, or do I have to wait until the EEOC makes a decision?
  • Can the EEOC make me turn over all of my employee records if an employee files a discrimination complaint against me?
  • An employee claims that I disciplined her in a discriminatory way, and she offered not to file a complaint with the EEOC if, instead of a suspension, I agreed to place a written reprimand in her file. Should I do that?

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