AVOIDING ALLEGATIONS OF DISCRIMINATION
The Importance of Precedent and Consistency
D. Wesley Newhouse
Newhouse, Prophater, Kolman & Hogan, LLC
Tel: (614) 255-5441
A. PROVIDING NOTICE AND DOCUMENTING PERFORMANCE ISSUES.
Documenting job performance is an onerous task. No one likes to.
But everyone must. Human resource professionals can cite many benefits
in documenting performance and behavior issues, and the evaluation of
job performance. We are concerned here with some of the legal benefits.
- Establishing the Legitimate Non-discriminatory Reason.
A defense in almost any type of employment lawsuit is that there
were legitimate reasons for the employer’s action. In the context
of discrimination cases, while technically not an affirmative
defense, the employer should administer its human resource
program as if it bears the burden of proof, being conscious always
of the need for evidence.
To prove a matter in a lawsuit, one must have evidence. There is
no better evidence than a writing, contemporaneous with the event,
which reflects the issue of behavior or performance, and the effort
by the employer to correct the issue.
Nowhere is this more important than in the case of age
discrimination. In evaluating the potential claim of an older
employee who has many years of service, the employer must
review the past record of performance evaluation, pay raises and
bonuses, and disciplinary action. Often, the employment record
lacks documentation of past violations of policies and standards,
and the employer’s efforts at corrective action. This raises a
strong inference that the employer did not have a non-discriminatory
motive for discharge, discipline or job reassignment.
In Meyer v. United Parcel Service, Inc., 174 Ohio App. 3d 339,
2007 Ohio 7063, 2007 Ohio App. LEXIS 6290 (App. Ohio,
Hamilton County 2007), the plaintiff claimed that he was
discharged because of his age and in retaliation for filing a
workers’ compensation claim. The court of appeals sustained the
jury’s verdict for the employee. The court’s words in respect to
the age discrimination finding are instructive:
Meyer had over 24 years of experience performing his
assigned tasks for UPS without serious disciplinary
problems. After Meyer had returned from a two-month
injury leave, UPS disciplined Meyer on his second day at
work. Genuine issues remained concerning whether Meyer was
provided with sufficient training on his new route and
whether he had been given training on a new computer
tracking system. Meyer had been replaced by a 23-or 24-
year old employee. In light of comments made by Meyer’s
managers to others regarding Meyer’s veteran status at
UPS and the advantages of terminating older employees,
Meyer established a prima facie case of age discrimination,
and genuine issues of material fact remained concerning
whether UPS’s proferred justification for Meyer’s
discharge was a pretext.
UPS made many mistakes in this case. The one pertinent to this
discussion is the documentation of the legitimate nondiscriminatory
reasons for his discharge.
a. Documentation must be contemporaneous.
Most employees don’t develop problems justifying
their discharge over night. Especially with long
term employees, there is a progression of declining
performance or unacceptable behavior. While it is
important to give employees the benefit of the
doubt, it is also important to begin the
documentation process when a pattern begins to
develop. A sudden change in documentation
suggests that the employer is insincerely “papering
the file”, and, as was the case in Meyer, the jury and
court might find this to be an indication that the
reason proferred is a pretext.
b. Documentation must be detailed.
It is not enough for the employer to briefly note that
there is a problem, particularly in the case of a longterm
employee. The documentation should disclose
the problem, the intervention, the proposed course
of action, the time for correction or follow up, the
understanding of the employee of what is
expected, the review of the employee’s progress,
and the end result of the corrective action process
c. Documentation must be accurate.
Performance documentation, if it is not to be
regarded as a pretext, needs to present the proof of the problem.
For example, a salesperson’s repeated
failure to meet sales quotas should be set forth in a
spreadsheet, prepared at the time of corrective
action, showing the failure to perform. Nothing
says pretext quite so well as a problem that cannot
be proven, or for which the proof suggests there is
no problem at all.
- Establishing Consistency of Treatment.
Discrimination claims are, by definition, comparative claims.
That is, one person compares how he was treated to how someone else
was treated, and then asserts that the varying treatment was
due to some immutable characteristic such as race or gender. While
it is not the burden of the employer to prove consistency of treatment
to rebut a claim of discrimination, being able to do so can lead
to the early dismissal of a charge of discrimination, or to summary
judgment in a lawsuit.Proof of consistency involves several elements:
a. Similarity of job duties.
A comparison is valid only if the jobs are the same or at least similar.
b. Similarity of compensation methods.
A difference in methods of compensation, such as
salary versus hourly, or salary versus commission,
can establish that the comparison of workers is not
c. Similarity in level of responsibility.
A supervisor who oversees a significantly larger
number of employees may not be a valid
comparator. A person who must keep the books as
well as oversee the work of others may not be a
valid comparator for someone who just oversees the
work of others.
d. Similarity in management oversight.
An employee at one location, working under the
supervision of a manager whose standards are exacting, may
not be able to use as a comparator an employee at a different
location whose supervisor is less demanding. When both workers have
the same supervisor, however, there is a good argument that
they are sufficiently similar to justify comparison.
e. Similarity in tenure.
The long-term employee will get more of the
benefit of the doubt than the short-term employee.
When these and myriad other factors establish sufficient similarity
to justify comparison, then the question will be whether the
documentation of job performance and discipline show substantial,
but not complete, consistency in treatment. The careful employer
will review the employment records of similarly-situated
employees to see that a proposed course of action either is
consistent with past conduct, or that the inconsistency can
be justified by a reason that can be documented and readily explained.
Proof of a process of careful documentation and comparison
with past practice will aid the employer in rebutting the assertion
that treatment was inconsistent, or that the inconsistency of treatment
is not justified.
- Showing the Lack of a Retaliatory Motive.
Retaliation arises when an employee has engaged in some type
of activity that is protected by the law (such as filing a charge
of discrimination or a workers’ compensation claim), the employer
takes adverse action, and the employee can establish that the
adverse action was due to the employee’s protected activity.
Where discrimination requires a comparison of how others have
been treated, retaliation focuses only on how the employee
in question was treated after he engaged in protected activity.
Documentation of problems prior to the protected activity can
rebut the assertion that the employer’s intent was retaliatory.
The employer did a good job of this in Leslie v. Ohio Department
of Development, 171 Ohio App 3d 55, 2007 Ohio 1170, 869 N.E. 2d
687, 2007 Ohio App. LEXIS 1063. The plaintiff was a lawyer
who made repeated calls to the home telephone number of a co-worker,
sent her e-mail messages at her home, and went to her apartment
complex. The employer documented its investigation of the coworker’s
complaints, and of its warnings to the lawyer to stop
attempting to contact her outside of the workplace.
The lawyerpersisted in contacting his co-worker. When discharged for
insubordination, the lawyer asserted that his termination was
based on his communications to his employer that certain lending
activities were contrary to law. The court found that the welldocumented
pattern of misconduct and refusal to comply with the
employer’s directives justified the termination.Compare this to
the Meyers case, where the only documentation of
poor job performance came after the protected activity of taking
leave for an occupational injury. Compare the Leslie decision
also with Buehler v. Ampam Commercial Midwest, 2007 Ohio 4708,
2007 Ohio App. LEXIS 4226, 26I.E.R. Cas. (BNA) 1122
(unreported, App. Hamilton County, Ohio September 14, 2007),
where the employer asserted that the employee was not terminated
for filing a workers’ compensation claim, but for violating
the three-day no call, no show policy. The employer could not
document that it provided notice to the employee required to
trigger the policy, and also testified that it was not certain
that the policy even applied to plaintiff.To successfully rebut
the allegation of discriminatory intent, the employer’s documentation
a. Plainly state the policy, and show its applicability to the plaintiff.
If the employer representative cannot testify at trial
that a policy upon which it relied to terminate
employment applied to the plaintiff, how could the
employer reasonably expect the employee to
understand that he had engaged in a violation of the
b. Reflect the employer’s communication of the policy violation.
Evidence of multiple warnings to the employee in
Leslie saved the day for the employer.
c. Reflect a consistent pattern of conduct.
In Meyers, the employer waited until after the
employee engaged in protected activity, and then
tried to document several alleged instances of
policy violation in the span of a few days. This was
ineffective and unpersuasive. Compare this to Young v.
Stelter & Brinck, Ltd., 174 Ohio App. 3d
221, 2007 Ohio 6510, 2007 Ohio App. LEXIS 5688
(App. Hamilton County, Ohio 2007), where the
employer documented misconduct four months
before the employee’s injury, establishing that the
employer did not act with retaliatory intent when it
discharged the employee.
B. DEVELOPING INSTITUTIONAL MEMORY.
Turnover is the bane of consistency. Most Gen Xer’s and Millenials
have considerably less loyalty to a single employer, preferring
to gain valuable experience early, and to then move on. See “From Traditionals
to Millenials”. Levy, C.J., BizVoice, January/February 2004. Reductions
in force, reorganizations, mergers and acquisitions, and bankruptcies
all seem more common place today than the halcyon days of yore.
The consequence is that an employer cannot rely on the 30-year
employee to know and understand how problems have been dealt with in the
past. Setting aside the question of whether reliance on past experience
is a best practice from an economic perspective, knowing how employees
have been treated in the past has legal significance. Consider the following:
- Compliance with Anti-discrimination Statutes.
As noted in the prior discussion, consistency of treatment,
or the justification for inconsistent treatment, can aid in
rebutting an allegation of discrimination. A new manager
taking over the supervision of an established work force
can look to carefully documented human resource records
to see how problems have been dealt with in the past, and,
if beneficial to the employer, to formulate a rationale for
changing past practice to meet current needs.
- Compliance with the Pregnancy Discrimination Act.
This federal statute, 42 USC Section 2000e(k), does not
require that an employer provide leave benefits to pregnant
employees, but it does require that the employer provide
such leave as has been granted to similarly-situated men
who have suffered serious medical conditions.
Documentation of past treatment of men with serious
medical conditions can serve as the employer’s memory
when long-term managers are no longer there to provide
their personal recollections.
- `Interpretation of Policies.
Employment policies can be ambiguous. Past practice can
clarify matters. For example, an employer may not have a
written policy setting a limit on accrual of unused paid time
off, but past payroll practices may disclose this.
- Compliance with the Equal Pay Act.
This federal statute, 29 USC Section 206(d), requires that
the employer provide equal pay for equal work. There are
several factors to consider in establishing equivalence of
work. Job duties, number of persons supervised, hours
required to perform the work, working conditions, and level
of discretion and authority all are part of the process of
comparing positions. A system of record keeping which
provides the basis for such comparisons is especially
important when those who know the reasons for pay
discrepancies are no longer available to the company.
- Compliance with the Americans with Disabilities Act.
This federal statute, found at 42 USC Sections 12101 et.
seq. and its state law equivalent, Ohio Revised Code
Section 4112.02, require that the employer accommodate
disabilities, including the provision of leave time and
restructuring jobs. The employer must weigh the cost and
feasibility of a requested accommodation. When there is
precedent for allowing additional time off or the
reassignment of duties to accommodate the injuries or
medical conditions of past employees, this will argue
against an employer’s assertion that a requested
accommodation poses an undue burden.
C. INTEGRATING POLICY WITH PRACTICE TO IMPROVE CONSISTENCY.
Surprisingly often, direct line managers fail to consult and
following the employer’s published policies. Of course, this inhibits efforts
to be consistent, for one of the principal purposes of an employee
handbook is to ensure that similar situations are treated similarly. It
can also result in the unsuccessful defense of an employment claim, such as the
case in the Buehler v. Ampam Commercial case discussed above, where the
employer representatives who testified at trial stated that
they did not know if the policy which they relied on to justify the plaintiff’s
termination applied to the plaintiff. For an employment policy
to be effective in the workplace and as a defense to an employment
claim, the employer needs to follow these steps:
- Communicate the Policy.
A policy that sits in a binder on a shelf in the supervisor’s
office is of little use. The employer should distribute the
policy, secure written acknowledgments of receipt, provide
timely updates that are distributed in a like manner, and
post the most current policies on the company intranet or
perhaps on the Internet.The U.S. Supreme Court acknowledged the importance of
the distribution of employment policies in Burlington
Industries, Inc., v. Ellerth, 118 S. Ct. 2257 (1998) and in
Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998).
In those cases, the court created a defense based on the
failure of an employee to follow an employer’s policy
regarding complaints about sexual harassment. The EEOC
has provided guidance as to what an employer should do to
assure that employees are informed of such a policy:
An employer should provide every employee with a
copy of the policy and complaint procedure, and
redistribute it periodically. The policy and
complaint procedure should be written in a way that
will be understood by all employees in the
employer’s workforce. Other measures to ensure
effective dissemination of the policy and complaint
procedure include posting them in central locations
and incorporating them into employee handbooks.
If feasible, the employer should provide training to
all employees to ensure that they understand their
rights and responsibilities.“Vicarious Employer
Liability for Unlawful Harassment by Supervisors”,
Equal Employment Opportunity Commission, June 18, 1999.
While intended to provide guidance in respect to sexual
harassment policies and complaint procedures, these
principles apply generally to any employer who wants to
assure that managers know and implement company policy.
- Update the Policy.
Laws change. Most recently, two significant changes in
laws and regulations expanded the rights of members of the
military and their families. Both changes require that
employers communicate the new rights to their employees.
Technology changes. Ten years ago, there were few
employers concerned about dissemination of confidential
proprietary information through blogs. Monitoring
employee e-mail use is now common, and a whole set of
federal and state statutes and common law precedent set the
ground rules for doing so.If a policy is to be effective
in assuring consistent, fair treatment of employees, it
must be made current with changing circumstances.
- Avoid Institutional Inertia.
As important as consistency and precedent may be, an
employer must be willing to change a policy or practice
that does not work. “We’ve always done it that way” does
not make for effective business practice, and it certainly
does not excuse the violation of the law. Remember,
however, that it is important to document the need for
changing the policy or practice so that there will be a
defense to a claim made by an employee adversely affected
by the change. An example would be an employer which
discontinues the practice of providing unpaid leaves of
absence to those who have exhausted their paid leave and
who are not eligible for Family and Medical Leave Act
leave. The first employee who is denied unpaid leave may
cry foul, so it is important to establish the new policy,
justify it, and communicate it to all employees in advance
of implementing it.
- Keep it Simple.
A good policy makes a direct and simple statement. It is
short. It is stated broadly enough to encompass most of the
situations it is intended to address.
A good policy:
“Do not sign another employee’s time sheet.”
A bad policy:
“It is the general practice of ABC Company
that one employee is not authorized to sign on behalf of
another employee said other employee’s time sheet, unless
there are exceptional circumstances, such as serious injury
or casualty to the company facility which would make such
signing necessary and expedient for the employer.”
D. RECONCILING CONFLICTING LEGAL REQUIREMENTS.
Complying with the requirements of one law may result in violation
of other laws. To avoid employment claims, the employer must survey
all potentially applicable laws, identify the requirements of each
of the laws, then decide on a course that complies with all requirements.
- Pregnancy Leave.
a. Pregnancy Discrimination Act, 42 USC 2000e(k)..
While it does not require that an employer provide leave
and benefits to pregnant employees, it does require that the
employer not discriminate against pregnant employees in
the provision of leave or benefits. This requires that the
employer look at the provision of leave and benefits in the
past. If an employee who had cancer, for example,
received 20 weeks of leave, the employer might violate the
PDA if it provided only 12 weeks of leave to a pregnant
employee pursuant to the Family and Medical Leave Act,
29 USC 2601, when the employee could establish the
medical necessity of additional leave.
b. Family and Medical Leave Act, 29 USC 2601.
This law requires that the employee be granted up to 12
weeks of unpaid leave for pregnancy, pregnancy-related
illness and childbirth. It does not permit the employee on
leave due to the birth of a child to take leave intermittently,
unless there is a serious medical condition that would
justify intermittent leave. Only an employee who has
worked for the company for 1250 hours in the 12 months
before the request for leave, and who works for an
employer with 50 or more employees within a 75 mile
radius of the employee’s place of employment is eligible
for leave. Consider, however, the potential for a claim of
discrimination that may arise because a man who works at
a location with 50 or more employees is granted leave
whereas a pregnant
woman is denied leave because she
works for a small and remote office of the company.
c. Ohio Civil Rights Commission Pregnancy Leave
Regulation. A regulation adopted by the Ohio Civil Rights
Commission requires that all employers accord to all
pregnant employees a reasonable amount of time to return
to work after pregnancy or childbirth. What is reasonable
is determined by what is medically necessary. See Ohio
Administrative Code Section 4112-5-05. As a
consequence, if a pregnant employee is not eligible for
FMLA leave because of lack of time in service or the size
of the employer, the Ohio employer must still provide
reasonable leave. If the employee needs more than 12
weeks of leave, the employer, even the employer whose
pregnant employee is covered by the FMLA, must provide
more leave time.
- The Rights of the Ill, Injured and Disabled.
An employee may have a serious health condition and a
disability, a serious health condition without a disability,
or a disability without a serious health condition. Setting
aside the further overlay of workers’ compensation
disability definitions, an employer faced with an injured,
ill or disabled employee must reconcile the requirements of
the FMLA and the Americans with Disabilities Act, 42
USC Section 12101.a. Disability. The ADA defines a disability as
an impairment that substantially limits a major life activity,
a record of having had such a condition, or being perceived
as having such a condition. The condition must be severe
enough to cause a substantial limitation, and it must be
sufficiently long-term to be more than a temporary
incapacitation. Definition of Disability Under the ADA, A
Practical Overview and Update, Duston, S.D. and Bruyere,
S.M., Employment and Disability Institute Collection,
Cornell University, September, 2001.b. Serious Health Condition.
A serious health condition under the FMLA means an illness, injury,
impairment, or physical or mental condition that involves:Any period
of incapacity or treatment connected with inpatient care (i.e., an overnight stay)
in a hospital, hospice, or residential medical care facility; orA period of
incapacity requiring absence of more than three
calendar days from work, school, or other regular daily
activities that also involves continuing treatment by (or
under the supervision of ) a health care provider; or
Any period of incapacity due to pregnancy, or for prenatal
care; orAny period of incapacity (or treatment therefor) due to a
chronic serious health condition (e.g., asthma, diabetes,
epilepsy, etc.); orA period of incapacity that is permanent or long-term due
to a condition for which treatment may not be effective (
e.g., Alzheimer’s, stroke, terminal disease, etc.);
or Any absences to receive multiple treatments (including any
period of recovery that follows) by, or on referral by, a
health care provider for a condition that likely would result
in incapacity of more than three consecutive days if left
untreated (e.g., chemotherapy, physical therapy, dialysis,
etc.).c. Leave entitlement. A person with a serious health
condition who is also disabled is entitled to up to 12 weeks
of unpaid leave, including intermittent leave, if a physician
states this is necessary. This leave must be provided, even
if it is not necessary as a reasonable accommodation of the
employee’s disability. For example, an employee who has
suffered a soft tissue neck injury in an automobile accident
may not be disabled under the ADA, and the employer
therefore would have no obligation to reasonably
accommodate, but the employee would be entitled to
FMLA leave if the injury is a serious health condition.
On the other hand, an employee who would be entitled to
12 weeks of leave under the FMLA may be entitled to more
leave time as a reasonable accommodation of a disability.
An employee who is undergoing chemotherapy and who
has depleted all FMLA leave may still be entitled to return
to work after more than 12 weeks of leave if the additional
leave is a reasonable accommodation of the employee’s
disability.d. Return to work. An employee who takes leave
under the FMLA for a serious health condition is entitled to
return to an equivalent position. An employee returning
from leave as a reasonable accommodation under the ADA
is entitled to return to the same position.e. Medical certification. An employee seeking leave
under the FMLA must provide medical certification of the
need for leave if requested by the employer. An employee
with a disability need not provide a physician’s certification
of the existence of the disabling condition.
E. THE IMPORTANCE OF TRAINING.
Three kinds of training are an important part of the employer’s
effort to avoid liability for discrimination and other employment claims.
They are training in respect to job duties, training in respect to general
policies, and training in respect to the requirements of employment laws
- Job Training.
Although there is no explicit obligation of an employer to
provide training to its employees, an employer is welladvised
to do so and to document the effort if it takes
adverse action against an employee in a protected class
based on poor job performance. In Meyer, discussed
above, the employer’s reason for discharge was regarded as
a pretext because it did not adequately train the employee
on his new route and the new computer system for tracking
his customer visits before disciplining him.An example of how
training and documentation can defeat an allegation of retaliatory
discharge comes from the case of Cunningham v.
The Kroger Co., 2006 Ohio 5900, 2006 Ohio App. LEXIS 5844
(unreported, App. Hamilton County November 9, 2006).
The plaintiff was terminated because of her violation of
safety policies. She claimed workers’ compensation retaliation.
In granting summary judgment for the employer, the court summarized
the employer’s safety training efforts:
As a Kroger forklift operator, Cunningham had
been required to complete both computer-based and
hands-on training before operating a forklift.
Throughout Cunningham’s employment, she had received
numerous safety-related circulars
outlining Kroger’s rules and policies promoting
safety in the workplace. Cunningham had also
attended training sessions regarding proper forklift
operation on Kroger’s loading docks. Each day
Cunningham attended startup safety meetings, and
on the morning of the accident she had participated
in a calibration-safety training process where
Kroger employees observed each other and
commented on the safety of their actions. Id. at Para. 5.
While this level of training and its documentation may
exceed what might be required of an employer, it illustrates
the point that, if a policy and practice is so important that
its violation justifies termination, then the employer should
be prepared to demonstrate the lengths to which it went to
assure that the employee in question was well-schooled on
- Training in Respect to General Employment Policies.
The need for this type of training is best illustrated by the
Buehler decision. There, a dispute arose over whether the
employee understood that he had to comply with a policy
requiring that he call in regarding his anticipated absence
from work while he was considering the employer’s offer
to allow him to return to a light duty assignment as he
recovered from an occupational injury. Because the
employee testified that he did not know the no call, no
show policy applied to him in such a situation, and because
the employer’s representative also testified that she did not
know that the policy applied to the plaintiff, the employer
could not rely on the policy to justify the employee’s
termination.Had the employer documented its review and interpretation
of the policy, and then notified the employee in writing that
he was required to abide by the policy pending the offer to
return to light duty work, the employer would have been in
a much better position to point to the failure to abide by
the policy as a basis for discharge.
- Training in Respect to Employment Laws and Regulations.
As noted in the above discussion of the need to
communicate policies, an employer must train employees
in respect to sexual harassment reporting procedures if it
hopes to rely on the defense that an employee failed to
resort to remedies offered by the employer.
Training also is relevant to the issue of whether an
employer has taken prompt and appropriate remedial
measures to prevent harassment, discrimination and
retaliation. When it is evident that an employer has a
policy prohibiting these activities, that it has trained its
employees in respect to the policies, that it has investigated
allegations of violation promptly, and that it has taken
corrective action to prevent further violations, then the
employer will likely be able to defend itself against such
a charge. “Policy Guidance on Current Issues of Sexual
Harassment”, Equal Employment Opportunity
Commission, March 19, 1990.