In terms of avoiding discrimination claims, we all have heard (and sometimes preached) the importance of consistency. Treat people the same and you minimize the risk of being sued for discrimination (unless the employee argues they were not similarly situated so that treating them similarly was discriminatory).

One way we can maximize consistency is by having clear rules. Clear rules remove the discretion (and sometimes the thinking) that can create the apparent inconsistency that may serve as the fodder for individual discrimination rules.

But per se rules also can create something else: class actions. Indeed, the EEOC is attacking per se rules as disparate treatment or creating adverse impact in numerous settings. Here are but two examples:

Some employers with leave of absence policies terminate employees when they reach a certain number of weeks’ leave. This promotes consistency but the EEOC sees “rigidity” and “inflexibility” and demands that employers determine whether additional leave may be a reasonable accommodation under the circumstances. Of course, this individualized determination will result in apparent inconsistencies that will invite individual discrimination claims.

Some employers have per se bars on hiring candidates with credit scores below a certain number. Again, the consistency avoids individual discrimination claims but the EEOC may attack, claiming adverse impact based on race or ethnicity, demanding effectively that the employer take a more holistic evaluation (as required by some state laws). But, again, a holistic approach will result in more individual discrimination claims based on apparent inconsistencies.

The bottom line: When we are inconsistent, we may be accused of discrimination. When we are consistent, we may be accused of being rigid, inflexible or discriminatory.

Ralph Waldo Emerson once wrote, “foolish consistency is the hobgoblin of a little mind.” We can update Emerson by saying consistent consistency is the hobgoblin of an uninformed mind.

We cannot avoid risk. We can only manage it.

In a very real sense, in this litigious society, we need to pick our plaintiff. So we need to replace the mantra “consistency, consistency, consistency” with “think, think, think.”