You probably already know this basic maxim of employee relations: treating “similarly situated” employees differently is great fodder for plaintiffs seeking to show discrimination. A recent Seventh Circuit case demonstrates this nicely and serves as a good reminder for HR and employers to look for consistent treatment among employees.
In Orton-Bell v. State of Indiana, the plaintiff was a prison social worker who had an inter-office affair with a supervising officer. When the employer discovered the affair, which violated policy, it terminated the plaintiff and he paramour. But it allowed the male officer to resign in good standing, keep all of his benefits, and continue working at the prison as a contractor. The plaintiff, on the other hand, left with nothing. When she sued for sex discrimination based on this disparate treatment, the court sent her claims to a jury, finding a reasonable jury could conclude the better treatment of the officer constituted sex discrimination.
Lesson learned: When two employees engage in the same misconduct, treat them equally. If, however, there is a good reason for treating them differently, document it. The Orton-Bell court noted that the employer did not proffer a good reason for the disparate treatment.