In our last post, we began speaking about a recent age discrimination case which was appealed up to the 5th Circuit Court of Appeals and decided in favor of the employer. The case involved the issue of when employees are or are not similarly situated for purposes of determining discriminatory workplace policies. When two similarly situated employees are treated differently on a restricted basis such as age, race or sex, this is considered illegal discrimination.
As we noted, the court determined in the case that the elderly worker was not similarly situated to the younger employees that did not lose their jobs after having made similar mistakes. The court laid out a three-part test that can serve as a basis for business disciplinary policies to ensure they are treating similarly situated employees equally.
To be similarly situated for purposes of discrimination claims, employees must (1) have the same job responsibilities; (2) either share the same supervisor or have their employment status determined by the same person; and (3) have a similar history of violations. This test does not require that employees be identical in order for there to be a finding that they are similarly situated, but does require that the differences between the employees in question be small enough that they could not account for the difference in treatment.
Allegations of employment discrimination are, of course, undesirable not only form a financial perspective, but also from the perspective of business reputation. Businesses do well to establish sound policies regarding employee discipline to ensure they avoid potential allegations of discrimination. Working with experienced legal counsel ensures that a company has sound guidance on the matter so that its liabilities with respect to employee discrimination are reigned in.