Working for Justice

Lady Lawyer Lessons*: Is the Discipline Discriminatory?

Posted January 28th, 2016 by in Employment Discrimination.

Many of my friends and colleagues initially responded to the story of a group of armed men taking control of an outpost on federally protected lands with a cross between disbelief and humor.  Talk of “YallQaeda” and “VanillaIsis” abounded. But beyond the humor, there was also a more sobering discussion – the fact that if the individuals waving around guns and taking over property weren’t white men, the results would be VERYDIFFERENT.  As Chauncey Devega put it quite simply, “they’d be killed if they were black.”

More recently a client (who we’ll call Colleen) called me frantic about a minor mistake one of her subordinates had made.  (NOTE: Her call was like one I get far too often from others as well, so in describing it, I’m combining and modifying some details to protect everyone’s anonymity.)  It was shortly before Colleen’s review was scheduled to take place, and Colleen was certain that she was going to pay a heavy price for her team-member’s flub on a client communication.  She was despondent that, after working so hard all year, this was what management would remember.  She called herself “stupid” and bemoaned not watching her team more closely.  “I can’t believe I did this to myself,” she repeated again and again.

After I calmed her down, I talked with Colleen about whether this was a foreseeable or avoidable mistake (not really, sometimes people mess up), the practical effect of the mistake, what it would mean for her employer’s relationship with the client, and what it would mean for her employer’s business.  Based on her experiences in the Company, men who managed subordinates who made mistakes rarely if ever even got a slap on the wrist; similarly, when men themselves made mistakes, those mistakes were usually treated as a learning opportunity.  In contrast, women who managed people who made mistakes were subject to public chastisement, intensive retraining, formal notations in their personnel files, reductions in compensation, and performance improvement plans. (“PIPs”.  To put it quite simply, “they’d be PIP’d if they were women.”)

Colleen became emotional again, anxious about how she might have jeopardized her career.  At that, I had to intervene because I couldn’t allow her to be so hard on herself.  The moral of this story wasn’t that she should have worked even harder, it was that her employer needed to be more even-handed in how it handled the aftermath of the mistake.

Differential discipline can be discrimination, and it is discrimination when harsher punishment is meted out for one protected group of people over other groups.  It isn’t necessarily discrimination if the police use force to subdue angry protestors, but it isdiscrimination if there are observable patters where people of color are subjected to force when white people get handshakes and listening sessions.  Docking someone’s pay or putting them on a performance improvement plan isn’t necessarily discrimination.  But when women face those consequences and men don’t for the same kind of errors, that is discrimination.

If you find yourself facing a situation in the workplace where you or one of your subordinates has made a mistake, don’t just assume that you deserve whatever you get.  Think about how the Company has reacted to these sorts of problems in the past.  Think about how you think your boss would respond if you looked different (different age, race, gender, religion, etc.).  Don’t go into any meeting assuming you should get off without any consequences and be prepared to acknowledge and own what mistakes you’ve made along the way.  Be prepared to talk about what you’ll do different or better in the future.  And be prepared to talk about how you understand your Company has handled these problems in the past and about what, based on the Company’s prior handling of these sorts of errors, would be a fair response to your failure now.

Once you’ve had that conversation, if your Company is disciplining you in a way that feels disproportionate and discriminatory, then it probably makes sense to make a record of that.

  • First, write something to your boss. Be sure you acknowledge your role and why you see your discipline as being inconsistent with how others have been treated.  Note your commitment to the job and to doing better.  Keep your tone measured.  Ask your boss to reconsider.
  • If that fails, next forward your correspondence with your boss to someone in HR or in Senior Management who you either know and trust or who at least has a reputation for being impartial. Make it clear that you aren’t necessarily seeking full exoneration, but that you are concerned that you are being treated more harshly than others have been in the past.  If you are comfortable naming the difference (e.g. “I’m being treated more harshly than my [male; Christian; white; straight] colleagues”) do so.  If you are uncomfortable being that explicit, be sure to at least name some of the colleagues who you believe were treated better.
  • Finally, take stock of what this is going to mean for your career long term. Will the discipline be the sort that follows you forward, making it more difficult to get promotions or raises in the future?  Or is this something that is likely to pass?  Just how disruptive will the discipline be to your daily life and emotional and physical health?  Has HR or Senior Management taken you seriously?  Do you believe you will have a fair chance moving forward?  Depending on how you answer those questions, you may need to think about talking to a lawyer and/or finding a new job.

The goal is to have everyone – be they Colleen, or Ammon Bundy and his clan, or Eric Garner or Sandra Bland – be able to engage with authority that treats them even-handedly and that the rules don’t change based on how we look, what faith we practice, or who we love.  Anything else is discrimination.

* Lady Lawyer Lessons is a monthly column where Kate K shares tips she wishes her clients knew before they came to her (or any other lawyer) for help or advice. As always, this is not intended to constitute legal advice or to create an attorney client relationship.  Instead, these are just some of Kate’s “rules of the employment road” that are often a good idea but may not apply in a particular situation.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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