You Make The Call: Woman claims inconsistent discipline proves gender bias

“Let’s talk about the reason we terminated Britta,” said HR Manager Alan Frankel.

“Sure,” replied Supervisor Margie Brunton. “We fired Britta because she violated one of our key policies and her actions could’ve exposed us to significant legal liabilities. Why do you want to know about her dismissal?”

“Britta just filed a gender-discrimination lawsuit against us,” said Alan. “She claims that she was really let go because of her gender.”

“Britta is grasping at straws here,” said Margie. “Gender had nothing to do with her termination. We have zero tolerance for violations of key policies and, in Britta’s case, she ran afoul of one of our most important policies.”

“Britta contends that we don’t really have zero tolerance for violations of key policies,” said Alan.

“What evidence does she have to prove that claim?” asked Margie.

“Britta says that over the past few years, we’ve had seven people disregard the same policy that tripped her up,” said Alan.

“That number sounds about right,” said Margie.

“According to Britta,” said Alan, “four of the policy violations were committed by men, but only two of these men were dismissed. Three of the policy violations were committed by women, and all three of them were fired. That means all the women who ran afoul of the policy were let go, but only two of the four men who disregarded the policy were fired.”

“There were justifiable reasons for not enforcing the policy in the case of the two male staffers,” said Margie. “We should challenge this lawsuit.”

Did the company win?

No. The company lost. The court refused to dismiss the lawsuit. The judge said the woman had adequate proof to support her allegation of potential gender bias.

The court pointed out that seven workers violated the employer’s zero-tolerance policy. Four of the violators were male staffers and three were female crew members. Yet all three female staffers were terminated, while only two of the four male workers were dismissed.

Based on the math, there was evidence that the policy was unevenly applied to male and female staffers and that the discrepancy could be linked to gender bias.

What it means: Discipline must be even, consistent

A word to the wise: Inconsistent application of discipline for policy violations is always a red flag in a court of law. In this case, the allegedly zero-tolerance policy was haphazardly enforced and, worse, female crew members were more negatively affected by the uneven application of discipline. As a result, the company was on the hook for potential gender bias even though the woman failed to provide any direct evidence of discrimination.

Furthermore, if your employer has a zero-tolerance policy for any infraction, that means zero tolerance. You can’t discipline some workers who violate the policy while not citing others; everyone must be punished according to the same zero-tolerance standard.

Based on Barbini v. First Niagara Bank N.A.

(From the June 20, 2022, issue of HR Manager’s Legal Alert for Supervisors. To start your no-obligation trial subscription to the publication right now, please click here.)