A federal appeals court recently revived a former employee’s gender discriminatory discharge claim even though there appeared to be legitimate reasons for her termination. The decision suggests that employers take a big picture look at termination decisions based on a specific instance of misconduct rather than a more narrow view assessing the misconduct at issue within its own proverbial bubble.
Among the things employers should consider when taking this bigger-picture approach are:
- The work history of the employee that committed the misconduct.
- Co-workers’ and/or comparators’ work history going back several years.
- Whether the employee who committed the misconduct a member of a protected group that is under represented in his/her job position, department, etc. For example, is the employee the only female or minority in the same job classification?
- Whether any co-workers (comparators) commit the same type of misconduct in the prior year or two. If yes, what discipline was issued, if any?
In the case, the former employee (accuser), a woman employed as a nursing assistant at the employer’s mental health crisis center, mistakenly discharged the wrong patient only hours after she attended a training session focusing on the requirement that patient identification wristbands and discharge paperwork must be checked to verify that that the correct patient is being discharged. The accuser admitted that she did not check the patient’s identification wristband prior to discharge. In addition, the discharged patient had only been admitted to the center seven hours earlier for suicidal concerns and still was at substantial risk for suicide.
So why did the appeals court revive the claim? In a nutshell, there was evidence that the accuser was treated less favorably than male coworkers.
Where did the employer go wrong? There is no doubt that the accuser violated the employer’s policies, the error compromised a patient’s safety, and the error was egregious. But according to the court, the employer made a mistake by stopping there and not looking at how other employees who committed similar misconduct were treated.
The following facts persuaded the appeals court to revive the accuser’s claim. The accuser had been a high performer and had never previously been disciplined prior to her termination. The employer employed a total of 14 nursing assistants and the accuser was the only female. In the 12 months prior to the accuser’s termination, two male nursing assistants also violated policies that compromised patient and/or staff safety but were only suspended. Male #1 had discharged the wrong patient because he did not properly check the patient’s identification wristband (the same misconduct the accuser committed). Male #2 failed to properly search a newly admitted patient’s bag wherein the patient concealed three knives. Lastly, both Male #1 and Male #2 had been disciplined multiple times for policy violations, including both receiving final written warnings, prior to their suspensions.
As we suggested above, employers must be careful issuing disciplinary action for employee misconduct as if each incident exists within its own isolated bubble. Courts will go outside that proverbial bubble to determine if the discipline imposed was in line with discipline previously issued to other employees and whether employer’s conduct could indicate a bias toward or against any protected class. A disparate treatment claim, by its very nature, means looking beyond the individual’s circumstances and considering how others were treated.