The belief among employees that “the rules apply to some more than others” when it comes to discipline is a morale issue in departments across the country. Regardless of whether rank and file claims of favoritism are warranted, the perception is fueled by the fact that agency decision-makers are often unclear on what discipline should be expected for various types of policy violations. Therefore, in the interest of morale and agency efficiency, it seems imperative that similar violations result in similar discipline, absent mitigating or aggravating circumstances.
Beyond issues of morale, inconsistent discipline can result in costly liability if dissatisfied employees or former employees are able to draw a link between the harsher discipline they received and a legally articulable distinction between themselves and similarly-situated employees who received less severe punishment.
Numerous types of legally articulable distinctions can result in liability. Some are more obvious than others. Distinctions in gender or race are somewhat obvious and disparate treatment based on those distinctions is prohibited by Title VII of the Civil Rights Act of 1964. Some distinction that may be less obvious include those based on age (prohibited by the Age Discrimination in Employment Act), disability (prohibited by the Americans with the Disabilities Act), military veteran status (prohibited by the Uniformed Services Employment and Reemployment Act), religion (prohibited by Title VII of the Civil Rights Act of 1964), sexual orientation (prohibited by numerous state anti-discrimination statutes) and the use of federal-protected leave (prohibited by the Family and Medical Leave Act).
In light of the aforementioned sampling of statutes under which unlawful discriminatory discipline statutes may be brought, agency leaders should be mindful of the fact that the inconsistent application of discipline policies can lead to costly claims of discrimination under a multitude of legal theories. Furthermore, many of those theories of discrimination are not dependent on differences between employees that can necessarily be seen with the naked eye.
A challenge that agency leaders often face is the temptation to view an employee’s performance or misconduct in a vacuum—because the employee engaged in activity X or Y, they can no longer serve as an officer and must be terminated. While this assertion may be completely reasonable, and a termination decision may be a moral imperative in light of the circumstances, this does not necessarily mean that the termination will not result in liability exposure. If a similarly-situated officer was not terminated for engaging in activity X or Y a few years ago, the termination now in question may be simultaneously the ethical leadership decision and yet also create the appearance of discriminatory discipline.
In seeking to limit discriminatory discipline liability, agency leaders would be well-advised to, first and foremost, take a “time out” moment before imposing significant discipline. In spite of the temptation to take swift action when unacceptable behavior is displayed by an employee, leaders should consult with any legal or human resources personnel available to them, trusted command staff members and any other personnel who can assist them in answering the following questions: Have we as an organization ever dealt with this type of a policy violation? If so, how were past cases handled? If we are contemplating more severe discipline that was given in the past, are there aggravating circumstances here that we can articulate to justify harsher treatment?
The rush to discipline may well be the most significant administrative mistake that leads to discriminatory discipline liability. There is an understandable temptation to view a particular infraction in isolation, and that risk can be limited by taking the time to review the agency’s past practices.
Even absent any “smoking gun” evidence of unlawful discrimination, agencies that fall into a pattern of seemingly inconsistent application of the rules run a substantial risk of facing costly discriminatory discipline lawsuits, in addition to eroding morale within the agency.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
For more on this topic, see the pre-recorded webinar:
Presenter: Matt Dolan
The purpose of this two hour public safety webinar is to provide the attendee with an understanding of the manner in which agency leaders are exposed to liability when officer discipline is-or appears to be-discriminatory, and the ways in which agencies can limit that liability.