Section 48 Discipline and Discharge

• Library: Employer-Employee Law 2008

Responding proactively to threats of violence or confrontations not resulting in serious injury is one of the best things an employer can do to prevent more serious acts of workplace violence. Whether imposing progressive disciplinary measures or discharging employees involved in such incidents, employers should also be cautious about certain legal risks such responses may create.

In a workplace governed by a collective bargaining agreement, discipline and discharge often require “just cause” and are likely subject to a grievance procedure, often culminating in arbitration.

Regardless of whether a contractual “just cause” requirement will be enforced, it is very important for employers to mete out discipline in a manner that is fair and consistent—and perceived by employees as such. Not doing so can have legal as well as morale consequences. For example, treating a minority employee who was involved in a fight more harshly than a white employee in a similar situation, without a strong justification for doing so, would likely be grounds for a valid claim of race discrimination. Stereotypes about African-Americans and crime may lead to such biased decisionmaking if the facts are not investigated and examined very carefully.

Claims of bias in such situations have been raised with regularity, though often unsuccessfully. Courts have often found valid reasons to distinguish the more-severely treated protected-class employee from others, finding them not “similarly situated,” and thus concluding that the difference in treatment did not establish unlawful discrimination. See, e.g.:

• Shaffer v. Potter, 499 F.3d 900 (8^t...