We Are Open (With Safety Precautions) & Ready To Help:  Click Here To Watched Our Covid-19 Webinar — What Employers Need to Know


Written on .

A recent case illustrates important principles concerning whether an employer has equally applied its attendance policies, as well as its other work rules.  Watkins v. EFP, LLC, 125 FEP Cases 1756 (N.D. Ala. 2014).  The African-American plaintiff first contended that the employer treated him differently than a similarly-situated white employee when he was suspended for attendance.  The facts did reveal that the white employee had accumulated more points and he had not been suspended.  However, the court examined other facts which revealed that employees must be present at work to receive discipline.  That is, past practice indicated that employees must receive the next step of attendance discipline upon returning to work, even if having accrued sufficient points to receive a higher level of discipline.  For example, if an employee previously received a verbal warning, and then was absent for three days, upon his return to work he would receive a higher level of points, but would only receive a written warning, the next level of discipline, and not a suspension.  Thus, the court found that there was no evidence that the employer did not follow its attendance policy, progressive discipline, or established past practice when suspending the plaintiff after his third attendance occurrence.

The plaintiff next contended that his discharge was discriminatory when he was terminated for ignoring the rule pertaining to stacking bundles.  The plaintiff produced testimony from two other employees that saw two or three white employees violating the bundle-stacking rule who were not terminated or disciplined in any way for the violation.  Thus, he contended his termination was discriminatory.

The court discussed the general principle of what constitutes a valid prima facie case, that the discriminatorily discharged claimant must generally point to a similarly-situated non-minority comparator who received more favorable treatment.  This principle generally means that the compared employees must have been involved in or accused of the same or similar conduct, yet be disciplined in different ways.  While this concept states the general principle, the court noted that management or supervision must witness or be aware of other employees' violations of the same rule in order for discriminatory disparate treatment to have occurred.  Under the facts of the case, the court found that whether management saw the other employees violate the rule was a question of fact for the fact finder, not the court on a motion for summary judgment.

The court also noted that different decision makers may have administered discipline so that the different treatment is not dispositive of whether illegal employment discrimination has occurred.  That is, different managers could have different management styles that could possibly account for the disparate treatment.  Different managers may also consider different or other mitigating factors.  Again, such details may be more appropriate for a jury than for a judge in a summary judgment motion.

Editor's Note:  This case illustrates the myriad of facts and arguments that may be presented in a disparate treatment case seeking to prove that an employer has discriminated in the application of its employment policies.  The case is also interesting in describing the application of an employer's point system for attendance, under circumstances where the employer had to decide how to handle an employee who accrues additional attendance points before returning to work and can physically receive his disciplinary action.  In this case, the employer was fortunate that it was able to establish its consistent past practice in requiring employees to be present at work to receive discipline.  The situation might have been clearer had the employer written its approach into its attendance policies.

Get Email Updates

Receive newsletters and alerts directly in your email inbox. Sign up below.

Recent Content

medical healthcare, indoors

Supreme Court Again Upholds Affordable Care Act

California v. Texas, the Supreme Court has again upheld the provisions of the Affordable Care Act (ACA), often known as ObamaCare. A fede...
sticky notes, wall, indoors

No-match Social Security Letters Discontinued

In the past, the Social Security Administration (SSA) during periods of time has issued so-called "no-match letters" to employers with "a...

Supreme Court Allows Catholic Group to Exclude Foster-care Rights

The public and the courts continue to debate whether there should be religious exemptions to LGBT anti-discrimination laws. In other word...
restroom neon light

EEOC Addresses Controversial LGBT Restroom Policies

A year ago the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII outlawed workplace bias based on sexual orientation a...
buttons on a table, indoor

Labor Board to Reconsider Employer Restrictions on Wearing Buttons and Other Insignia in the Workplace

Many employers do not like the idea of employees wearing pro-union shirts or buttons on the job. In the past, however, and particularly d...
monopoly houses on a wooden table indoors

Supreme Court Rejects Union Access to Employer's Property in California

A strong ruling for employers' private property rights was issued by the U.S. Supreme Court in June in Cedar Point Nursery v. Hassid, No....

Wimberly, Lawson, Steckel, Schneider & Stine

3400 Peachtree Road, Ste 400 / Lenox Towers / Atlanta, GA 30326 /404.365.0900

Where Experience Counts

Thank you for visiting the firm's website. Please note that this website is intended for general information purposes only and does not constitute an offer of representation or create an attorney-client relationship with the firm. The firm welcomes receipt of electronic mail but the act of sending electronic mail alone does not create an attorney-client relationship. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include the firm's copyright notice.

© 2020 Wimberly, Lawson, Steckel, Schneider & Stine P.C. | Site By JSM