The road to liability is paved with inconsistent enforcement of grooming, tipping, and other employment policies
By Lorene D. Park, J.D.
Employers, here’s a thought: how about telling managers to enforce your policies consistently and then making sure they follow through? Time and again, employment discrimination and retaliation cases hinge on whether or not an employee can show he or she violated the same policy as, but was treated differently than, a coworker outside his or her protected category. Even if there is no similarly-situated comparator, an employer’s failure to follow its own policy can support a claim that whatever adverse action it took was discriminatory or retaliatory.
Inconsistent policy enforcement. In one case, a court denied an airline’s motion for summary judgment on the sexual orientation discrimination claim of an openly gay flight attendant who was told he could not work a flight to Paris with his hair styled in a Mohawk. The court ruled that a jury would have to determine whether he was subjected to a different grooming standard based on his sexual orientation in violation of the New Jersey Law Against Discrimination (Falcon v Continental Airlines). Grooming was also at issue when a court awarded a Pennsylvania housekeeper $25,000 on her discrimination claim after she was fired for refusing to take braids out of her hair. She produced evidence that the hair policy as applied prohibited cornrows showing scalp, but not braids, and that non-African-American employees wore braids but were not disciplined (Vazquez v Caesar’s Paradise Stream Resort).
Inconsistent enforcement of policies is also at issue in many retaliation cases. For example, the First Circuit revived a skycap’s claim that he was fired in retaliation for his role in a separate FLSA suit based in part on evidence that, despite purportedly firing him for violating a tip solicitation policy, managers did not fire other skycaps who violated the same policy. To the court, a jury could find that the decisionmakers’ knowledge that the CEO was angry over the FLSA suit tipped the scales in favor of their finding that the employee violated company policy in a way that required his termination (Travers v Flight Services & Systems, Inc).
Failing to follow own policy. Many cases hinge upon a claim that an employer has enforced its policies in a way inconsistent with the way they were written. An employer’s departure from its own policy is suspect and calls into question whether the departure is due to discriminatory or retaliatory animus. In one case, an African-American driver who was required to take a drug test after his legally parked vehicle was struck by another car alleged that the employer discriminated against him based on his race, as evidenced by the departure from its drug policy. The policy required a test only if a driver “may have caused/contributed to the accident” but the employee here was not at fault. A “deviation from standard procedure may raise an inference of discrimination,” the court explained (Jones v Ottenberg’s Bakers, Inc).
An employer’s failure to follow its own policy was also one basis for a Pennsylvania court denying summary judgment on the ADA and ADEA claims of an employee who was rejected for a position in favor of an external applicant, despite a policy of preferring internal candidates (Buller v PPG Industries, Inc). These cases show without question that employers should make sure their policies are enforced consistently, and enforced as written.
Consistency supports defense. As much as inconsistency can be used against an employer in court, the converse is also true and consistent application of employment policies can support an employer’s argument that it had a legitimate non-discriminatory or non-retaliatory reason for taking an adverse employment action. For example, an African-American employee who was fired for trying to sneak a cell phone into a facility against policy had her race discrimination claims dismissed because the policy violation was a legitimate reason for her discharge and she failed to show pretext. The court found it significant that the employer had recently fired another employee and banned a Caucasian visitor from the premises after they did the same thing (White v Oklahoma).
Survey the consistency of enforcement. As the above cases show, consistency (or lack thereof) in enforcing an employer’s policies can determine the outcome of potential litigation over discrimination and other claims by employees. They also show that a wide variety of policies could be at issue, including those on drug or alcohol use, cell phone use, grooming, tipping, and more. With that in mind, it is a good idea to investigate how managers enforce policies that have the potential to impact the terms and conditions of employment (including the potential for raises, promotions, discipline, etc.). Some areas of inquiry when surveying managers include:
- A manager’s knowledge of policies he or she enforces, including policy goals.
- Any policies that a manager might find unclear (e.g., violations should be clearly defined).
- Which policies have been “enforced” in a given period of time, including instances where managers provided training, suggestions for improvement, warnings, or discipline.
- If an employee was disciplined for violating a policy, inquire as to whether the level of discipline was consistent with that imposed on other employees; whether the “punishment” fit the “crime;” and whether the level of discipline was consistent with the employer’s policy (including any progressive discipline policy).
- If an employee was disciplined in a way suggesting inconsistency in policy enforcement, investigate why and address any disparities that cannot be explained away based on differences in level of responsibilities and expectations, a history of prior violations, or other legitimate (non-discriminatory or non-retaliatory) reasons for the seeming inconsistency.
After surveying each manager’s understanding of the employer’s policies and his or her consistency in enforcing them, address any weaknesses found in a manager’s knowledge of the policies and understanding of the importance of consistency and fairness. More than likely, the mere fact that the employer is performing such an audit will remind each decisionmaker that consistency is important.