Inconsistent enforcement of disciplinary policies irks the 9th circuit justices
 June 28, 2013

Another federal appeals court has taken issue with inconsistent enforcement, and this is closer to home. The Ninth Circuit justices found that a bank's dismissal of an employee for misconduct may have been a pretext for discrimination, based entirely on a finding that its zero-tolerance discipline policy was inconsistently applied. As a result, a terminated employee was entitled to a trial on her age-discrimination claim. Sharon Brockbank, a trust officer who was over aged 40, was terminated after she charged her cell phone family plan (which included lines for her children), Internet service and anti-virus software to her corporate credit card. Bancorp contended that this violated its zero-tolerance policy for credit card use because she deliberately charged personal expenses. After she was terminated, her client accounts were distributed to the remaining trust officers, most of whom were younger than Brockbank.

In holding that Brockbank could proceed to trial with her age-discrimination claim, the Court of Appeals found there was a question of fact as to whether Bancorp's reason for termination (zero tolerance of credit card misuse) was pretextual. Legally, a pretext is typically a justification that masks the true discriminatory reason for the adverse action. In reaching this conclusion, the justices determined that the credit card policy contradicted the zero-tolerance policy because it provided that misuse or “excessive personal use” of the card “may” result in discipline; not that it always results in discipline. Critically, there was evidence that Brockbank's own supervisor had misused his card to purchase alcohol and excessive client gifts, but he was not disciplined. There was also evidence that other employees were not disciplined for making personal purchases.

Further, Brockbank claimed that her charges had a business purpose and were not solely personal because she used her cell phone, computer and Internet connection when she worked from home. Importantly, the credit card policy allowed charges for "non-reimbursable personal expenses incurred in the course of business activities that are incidental in nature and where it is not otherwise practical for the employee to pay for those expenses separately." Therefore, there was evidence that she was complying with both the letter of the policy as well as with the way it had been applied to others individuals.

Prevention Strategies: In order for "zero-tolerance" discipline policies to be effective, they must be applied consistently, without exception. Review your disciplinary policies to assure that they are capable of uniform enforcement and are in-line with other workplace standards. If not, they should be revised. Then, apply your company's business appropriate standards consistently to all similarly situated people.

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