Dive Brief:

• A Philadelphia code inspector whose supervisor had "never received such a large number of complaints about a single inspector" was unable to persuade the 3rd U.S. Circuit Court of Appeals to reinstate his lawsuit alleging that he was fired for racial discrimination (Durst v. City of Philadelphia, No. 18-3302 (3rd Cir. Jan. 14, 2020)).
• James Durst, a white man, was terminated for violating rules forbidding city employees from engaging in fraud or dishonesty. Durst falsified inspection violations, route sheets and other city documents, according to the court's opinion. He also repeatedly failed to get supervisor permission to start his workday in the field, wrongly reported properties as having code violations and failed to show up for scheduled inspections, the court said.
• He sued the city under Title VII of the Civil Rights Act of 1964, saying non-white inspectors had escaped termination for similar offenses. The appeals court said Durst had not presented any evidence that the city had discriminated against him because of race. The appeals court said the comparators Durst offered were not similarly situated. It said, too, the city had offered "numerous, legitimate, non-discriminatory reasons for terminating him," including the city's Integrity Officer testifying that Durst was a "danger to the public" because he failed to conduct inspections.

Dive Insight:

This case illustrates that employers have a right to make their own personnel decisions if there is a reasonable basis for the action, but uneven discipline can undermine an employer's decisions and serve as evidence of discrimination or retaliation in lawsuits. Employers can't take into account a person's race, color, religion, sex, national origin, age, disability or genetic information "when making decisions about discipline or discharge," according to the U.S. Equal Employment Opportunity Commission (EEOC). For example, EEOC says, "if two employees commit a similar offense," an employer may not subject them to different forms of discipline because of a protected characteristic.

Plaintiffs have been able to move their cases forward and prevail when they proved that disciplinary decisions were made on an uneven basis and race or age or some other protected characteristic was involved. National origin bias allegations brought by a Whole Foods employee based on uneven discipline, including a claim that he was the only worker fired for a single incident of overstaying a break, last year survived summary judgment. Similarly, the 3rd Circuit affirmed a jury's $258,000 award to a terminated 57-year-old manager who claimed that younger co-workers who received failing performance evaluations were treated more favorably.

To avoid these situations, HR needs to ensure policies are applied consistently and that employees who violate the policies experience the same disciplinary actions. Otherwise, regardless of the intent, disciplinary actions may look like discrimination and retaliation.