Similarly Situated Evidence - Employers Must Consider Differences

The court of appeals in Chicago recently issued an instructive decision on comparing similarly situated employees.  The fired employee worked for the Indiana Department of Corrections and repeatedly refused a job assignment to the point that the DOC fired her.  She sued under the ADA alleging the firing was a pretext for getting rid of her because she had back problems (which was one reason she refused the job assignment).

The court of appeals initially addressed whether the employee was similarly situated to two other employees who had also refused (to some degree) a job assignment.   This aspect of the decision can be summed up by saying that employers shouldn't try to split too fine a hair in making employee comparisons.

The more important point, it seems to me, is that employers should consider all factors that distinguish an employee from co-workers when deciding on the level of discipline for an employee.  Here, when the lawsuit got to litigation, the employer argued that the fired employee was not similarly situated to other employees who were not fired because the fired employee had a worse disciplinary history.   Of course, an employee's disciplinary history is a perfectly valid consideration in imposing discipline. 

The problem for the employer was that (as the court said): "not only does the evidence fail to indicate that disciplinary history was considered, but the record makes clear that disciplinary history played no role in DOC’s decision to terminate . . . employment."  It explained:

A characteristic that distinguishes two employees, regardless of its significance when objectively considered, does not render the employees non-comparable if the employer never considered that characteristic. The purpose of the similarly situated requirement is to provide a basis for a judgment about the fairness of the employer’s decision.  Factors never considered by the employer cannot provide any insight as to whether the employer’s decision was motivated by discriminatory intent.

The problem here was that the employer's evidence established that disciplinary history was not a consideration at the time.

So, in considering discipline for misconduct, it will help to make sure your documentation demonstrates you took into account all the differences between employees.  While this should be documented (so as to avoid the argument that the evidence was manufactured after the fact), it is at least as important to consider all the reasons for distinguishing employees.  At a minimum, the decision-makers need to be able to convincingly testify that they considered the factors which distinguished the fired employee from employees who were not fired.